5 Questions to Determine if you are Protected by the Whistleblower Act

How do you know if you're protected by the Swedish Whistleblower Act? What should you consider before blowing the whistle? To whom should a whistleblower errand be reported?

Oscar Fredriksson is a Swedish lawyer and head of investigations at Starck & Partner, with long experience of investigating violation, harassment, bullying, whistleblower errands and other kinds of business-related incidents. In this blog post, he provides us with five questions to ask yourself before deciding to blow the whistle, in order to determine if you’re protected by Swedish whistleblower law.

1. Am I protected by the Swedish Whistleblower Act?

The first question to consider as a whistleblower is: – Am I protected by the Swedish Whistleblower Act?

In the Swedish Whistleblower Act, it is clearly stated who is protected by it. The new law includes more persons than the older version. The current Whistleblower Act names the following groups as protected by law:

• employees
• persons seeking employment 
• persons seeking or doing volunteer work
• persons seeking or doing an internship
• persons being considered for doing work or persons actively doing work under the control and leadership of the organisation 
• self-employed persons seeking or doing work for the organisation
• persons being considered for or persons participating in the management, administrative, or regulatory body
• shareholders being considered for or actively doing work in the company
• persons who have belonged to any of the above categories and have received or obtained the information during their time in the business.

This is a rather extensive list of people with connections to the business. If you belong to any of the categories above you are protected by the Whistleblower Act.

2. Has applicable legislation or regulation been violated?

Issues related to environmentally hazardous emissions, corruption, criminal activities, or the operation of the business in violation of applicable regulations may serve as grounds for whistleblowing. The support you need to make a whistleblowing report can be based on your own experiences or documentation showing that the reported activities are in breach of national legislation, EU law, or specific regulatory requirements.

3. Is the information of public interest?

You should be aware that perceived misconduct concerning personal employment conditions typically falls outside the whistleblowing legislation. The Whistleblower Act can only be applied when a report concerns misconduct that is of so-called "public interest".

Being subjected to offensive discrimination, harassment, or bullying in the workplace is generally not considered a matter of public interest. "Public interest" means that for a reported issue to be considered whistleblowing, the issue should not be limited to your personal conditions and experiences in the workplace. There has to be reasons to make the issue publicly known. Common personnel matters such as feelings of dissatisfaction or personally targeted offenses, harassment, or bullying are therefore typically not subjects to be investigated under the protection of whistleblowing law. In such cases, labor laws and anti-discrimination laws serve as the legal basis instead.

4. Do I have to report the issue internally first?

Whistleblower reports can be made in three different ways under the protection of the Whistleblower Act. You can report the misconduct to the employer where the wrongdoing is occurring, make an external report to the relevant authority, or disclose the information by sharing it with, for example, the media, politicians, or trade unions. Before choosing to disclose the information publicly, you must first attempt to raise the issue internally and also report it to the appropriate authority. If the authority has a specific reporting channel, you can directly approach them without first raising the issue internally.

If you don't receive any response within a reasonable time, you are allowed to disclose the information publicly. The Whistleblower Act states that a confirmation that the whistleblower report has been received should be given within seven days, and there should be feedback regarding what actions have been taken within three months. If you don't receive a response within these time frames, you can proceed with disclosing the information publicly under the protection of the Whistleblower Act.  

5. Do I need to prove that the information is correct?

You don't have to be able to prove that the information you provide is correct, but it can't be based solely on rumors either. You can share things that you have personally witnessed and experienced or provide supporting documents for your claims. In such cases, the employer must investigate whether the information is accurate and, if so, take measures to address the issue. Even if the information turns out to be untrue, you are still protected by the Whistleblower Act as long as you provided the information in good faith - meaning that you believed the information you provided was correct.

In conclusion

It should also be noted that the legislation regarding source protection and freedom of expression when contacting journalists remains unchanged, and the Whistleblower Act does not alter these regulations. However, the fastest way to address any misconduct is often to report the information to the responsible manager or blow the whistle internally.

If there is no internal response, there may be grounds to escalate the matter to the relevant authority and, if that step doesn't lead to any action either, to disclose the information publicly. Although the Whistleblower Act grants the right to report anonymously, a whistleblower may still be required to testify about what they have experienced in order to have the issue examined legally.

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