Do union representatives have whistleblower protection?

The Supreme Court has decided to proceed with the appeal of the Frostating Court of Appeal’s judgment dated March 3, 2023 (case 22-127786ASD-FROS) in relation to the question of whether a union representative should be considered a whistleblower under Chapter 2A of the Norwegian Working Environment Act. The position taken by the Supreme Court could have significant implications for the dialogue and cooperation between employers and union representatives, whether the organization is bound by a collective agreement or not. It could also have a significant impact on the ability of employers to exercise their right to govern over employees who are also union representatives.

In a case before the Frostating Court of Appeal earlier this year, Nortura was acquitted of claims for compensation for illegal retaliation for whistleblowing and for misuse of their right to govern in connection with the relocation of an employee. The employee was a union representative at Nortura, and the alleged report was an email he had sent to Nortura’s HR manager, containing strong criticism and negative comments about Nortura’s handling of a personnel matter. The union representative had previously received several warnings for inappropriate behavior towards Nortura’s managers. Following the email, he received a new warning and was shortly thereafter relocated to another department. The warning was, in part, based on the email.

The employee sued Nortura, claiming compensation for illegal retaliation and misuse of the employer’s right to govern. A central question in the case was whether the employee/union representative’s email should be considered a “whistleblower report” under Chapter 2A of the Norwegian Working Environment Act, and whether the employer’s reactions constituted illegal retaliation for the report.

The majority of the Court of Appeal (four judges) determined that the email was not a whistleblower report, and therefore, the employee did not have whistleblower protection under Chapter 2A of the Working Environment Act. The majority started from the premise that union representatives can also blow the whistle and have whistleblower protection. However, crucial to the majority’s conclusion was the fact that union representatives have a contractually established right to address (criticizable) issues with the employer, and that union representatives must be able to address such issues in their ongoing dialogue with the employer without the formal rules on whistleblowing regulating the matter. The majority also emphasized that there was no indication that the union representative himself regarded the email as a whistleblower report when it was sent, and neither did Nortura. The minority (one judge) attached decisive importance to the fact that the content of the email concerned objectionable conditions to which an employee had been subjected and concluded that the email should be considered a whistleblower report. The Court of Appeal unanimously concluded that the relocation of the employee was justified and did not constitute a misuse of the employer’s right to govern. The latter question will not be reviewed by the Supreme Court.

Even though the Court of Appeal’s conclusion has sound reasoning, the answer is by no means clear-cut. The reality in the Court of Appeal’s rationale is that much more is required for a union representative’s criticism of objectionable conditions to be considered a whistleblower report than for other employees. The Court of Appeal also placed great emphasis on the sender’s subjective perceptions, which can be a rather dangerous argument. On the other hand, if any mention of or criticism of objectionable conditions by a union representative were to trigger whistleblower protection, this could harm the ongoing trust-based dialogue between employers and union representatives upon which the Norwegian cooperation model is based. Therefore, the position of the Supreme Court could have a significant impact on how cooperation and dialogue between employers and union representatives will be conducted in the future.

The case has not yet been scheduled for hearing.