Is the employer obligated to disclose notices and reveal the identities of whistleblowers in legal proceedings?

The Borgarting Court of Appeal has ruled in decision LB-2023-67604 on whether the employer (Det Norske Travselskap) was obliged to disclose the identities of whistleblowers in connection with a lawsuit. The specific case concerned a claim for defamation. The plaintiff, a former union representative in Det Norske Travselskap, demanded that the employer present the whistleblowers’ reports and reveal the identities of four out of a total of six whistleblowers involved in the case. There was no doubt that the information was relevant evidence in the case, and the general rule in the Act relating to mediation and procedure in civil disputes (the Dispute Act) is that parties are obligated to present all evidence that is relevant to the case, as stated in section 21-5 of the Dispute Act.

Det Norske Travselskap argued that the conditions for exemption from providing evidence under section 22-9, first paragraph, and/or second paragraph of the Dispute Act were met. The first paragraph provides exemption from evidence that could result in a penalty for the person concerned (or certain close associates). The third paragraph provides (under certain conditions) exemption from evidence when there is a risk of significant loss of social reputation or significant loss of other kinds of welfare for the parties, witnesses, or any of their close associates.
The Court of Appeal did not address whether the conditions for exemption from evidence were met under section 22-9, first paragraph, but concluded that the conditions under the third paragraph were met, and the evidence was denied admission under this provision. The decision was substantiated based on the specific facts and circumstances of the case, but key arguments in the Court of Appeal’s reasoning were that the whistleblowers were current or former employees, and therefore, Det Norske Travselskap had a statutory responsibility to safeguard their working environment and protect them from unlawful retaliation due to whistleblowing.

The judgment may be used by some to argue that evidence related to whistleblowers and their identities can generally be denied under the the Dispute Act section 22-9. However, this is likely not accurate. A crucial factor in the Court of Appeal’s assessment was that Det Norske Travselskap had the burden of proof for the alleged defamatory statements. Therefore, it was primarily in the interest of the company to present the evidence. If the issue arises in disputes where the party demanding the evidence has the burden of proof, it is not guaranteed that the conclusion will be the same. On the contrary, the general rule in such situations is probably still that the reports must be presented, and the identities of the whistleblowers disclosed. However, the ruling introduces more uncertainty, and it is expected that employers will increasingly refuse to present whistleblowers’ reports and disclose their identities in the future. The Court of Appeal did not discuss the fundamental aspects of this as it pertains to the legal protection of those who experience whistleblowing allegations against them. In our view, this is unfortunate.