Control measures, whistleblowing and investigations

The employer’s management prerogative includes keeping control of the activities that are carried out on behalf of the enterprise. In many areas, employers also have a duty to carry out such control. A manufacturing company, for example, is required to control any pollution to the surroundings and any risk factors that the manufacturing entails for employees. In order to ensure such control, it is sometimes necessary to carry out measures that entail checking on the enterprise’s employees. Such control measures may be invasive for employees and the Norwegian Working Environment Act therefore sets out requirements detailing when control measures are lawful and how the employer must approach situations in which the employer wishes to carry out control measures.

The employer also has a duty to take action if the employer becomes aware of unlawfulness or other issues of concern relating to the enterprise. On the other hand, employees have a right and, in some cases, also a duty to notify the employer if they become aware of unlawfulness or other issues of concern relating to the enterprise. The Norwegian Working Environment Act therefore also sets out rules to ensure that employers manage such reports in a satisfactory manner and protects whistleblowers against unlawful retaliation as a result of reporting.

Employees have a right and, in some cases, also a duty to notify the employer if they become aware of issues of concern relating to the enterprise.

If there is reason to suspect that unlawfulness or other issues of concern have occurred in relation to the enterprise, the employer will generally have a duty to examine the matter further. In some cases, such examinations will be carried out by the employer. In other cases, the employer may elect to engage independent experts, typically lawyers, to carry out the examinations. The latter is often referred to as “investigation”. Investigation processes can be very challenging for both the enterprise and the affected individuals. Such processes will often be especially challenging for the individual(s) accused or “suspected” of having done something wrong. The rules relating to investigations are also not enshrined in law to any significant extent and can be difficult to ascertain even for lawyers.

Homble Solheim has extensive experience of assisting enterprises and affected individuals on matters relating to control measures, whistleblowing and investigations.