A new law will be introduced in Sweden this January to improve the protection of whistleblowers, strengthening the employees’ situation. However, they will still be left with much responsibility when it comes to deciding which wrongdoings are serious enough to afford them protection.
The new law is simply known as ‘the whistleblower law’, although its more formal name is ‘Act on special protection against victimisation of workers who are sounding the alarm about serious wrongdoings’. It means any employee, whether he or she works in the private or public sector, can tell the media or authorities about corruption or other serious issues, without risking reprisals like withheld wages, lessened career opportunities or – in the case of temporary workers – reduced chances of having their contract renewed.
The idea is that the employee should approach the employer first, and if the employer does not act, the case can be taken to the media or the authorities.
“Workplaces benefit from having a climate in which employees dare to criticise. It is very beneficial for the labour market and society as a whole if you can safely point out wrongdoings so that these can be rectified. Today there is not sufficient protection. The question is whether the new legislation will make any difference in real life. I hope it will,” says Lise Donovan, chief legal advisor at the Swedish Confederation of Professional Employees, TCO.
She views the new law as a strengthening of the employee’s right to whistleblow at work, but she also thinks it is too complicated.
“It says there must be serious irregularities or comparable ills which might lead to prison. It is difficult to determine what this constitutes, yet it remains a prerequisite in order to qualify for the law’s protection. When we train our trade union representatives, who might be asked what constitutes serious irregularities, they tell us that they find it difficult to decide what is,” says Lise Donovan.
Whistleblowers are often praised for their courage. Yet it has been shown that they often pay a high price. Recently the so-called Macchiarini scandal got a lot of attention in Sweden. The charismatic surgeon Paolo Macchiarini, famous for his skill of replacing patients’ windpipes with synthetic ones, was invited to be a visiting professor at the prestigious Karolinska Institutet (KI) in Stockholm, and was also made a senior consultant at the Karolinska University Hospital.
But when several of his patients died over the years, some colleagues became increasingly sceptical to his professed competence, and alerted the then KI chairman. Macchiarini was initially protected, and instead the whistleblowers were threatened with dismissal. When the story leaked to the media, there was a scandal which claimed the scalp of not only Macchiarini, but also much of the KI top leadership.
“Employers often say it is also in their own interest to expose wrongdoings, but the Macchiarini saga at KI is a good example of how opposing interests might prevent the right action from being taken, even if there is motivation to something. As a result, the whistleblowers do not become heroes at all. Often it is also not just the employer who is critical to the whistleblower, but fellow employees too,” says Lise Donovan.
This year the Swedish Freedom of the Press Act is 250 years old, which makes it the oldest in the world. Yet speaking freely about issues in the workplace as an employee is more complicated than speaking out in print or in other media as an individual. An employee has a duty of loyalty, and the first thing to do if something is not right in the workplace is to talk to the employer. This loyalty is particularly strong within the private sector, but it is also present in the public sector. In the latter, the employee does have freedom of expression, however, and can approach the media with any criticism.
“These are authorities financed by the taxpayer, which means there is a greater public interest in seeing whether the money is managed properly,” says Lise Donovan.
Public sector employees who talk to the media are protected by the so-called meddelarfrihet (freedom to communicate), which is part of the Freedom of the Press Act. This could be completely open and the employer has no right to hinder or punish the person who has spoken out. If the employee chooses to criticise the company anonymously, the employer has no right to try to find out who was behind the information – there can be no investigation of who made use of their statutory right to communicate, the so-called meddelarskyddet (protection for informants). The employer has also no right to reprimand anyone who publicises wrongdoings in any way.
In recent years this type of freedom of expression has been chipped away at by the privatisation of public companies. Meddelarfrihet and meddelarskyddet do not apply to private company employees, but proposed new legislation would address this issue for private companies running tax-funded health, education and care institutions. A bill has been promised for November, and the new law is due to be implemented from April 2017.
“Companies which are financed through our common tax money should be safe and of a high quality. Employees and contractors must therefore be able to talk when they discover wrongdoings without the fear of reprisals. A strong protection of whistleblowers contributes to this kind of security and improves transparency around the businesses,” said the Minister of Justice and Migration, Morgan Johansson, when he presented the proposed legislation called ‘Stronger whistleblowing protection for private employees in public companies’.
“The big difference is that employees in private companies running health, education or care institutions now get the right to talk to the media about anything, and it is then up to the journalist to consider whether the information is serious and interesting enough to warrant publication,” says Lise Donovan.
But many tax funded companies are not in the health, education or care sector.
“The way in which the proposed legislation is written, there are good opportunities to add new areas, and there is also an ongoing government investigation into which other areas might be relevant to include,” says Lise Donovan.