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Anställdas yttrandefrihet och kritikrätt. En komparativ studie av rättsläget rörande whistleblowing i Sverige, Norge och England

Authors
Publisher
Lunds universitet/Juridiska institutionen
Publication Date
Keywords
  • Yttrandefrihet
  • Arbetsrätt
  • Kritikrätt
  • Meddelarfrihet
  • Meddelarskydd
  • Lojalitetsplikt
  • Whistleblowing.
  • Law And Political Science
Disciplines
  • Economics
  • Law
  • Political Science

Abstract

The thesis has two main purposes. The first one aims at establishing the current legal situation for employees’ freedom of expression and right to criticize the organization in which they work. This is done on a national level as well as on a European level. The second purpose is to investigate the level of protection that Swedish law provides for so called whistleblowers; employees who reveal possible malpractice or dangers to the public under the control of their employers. The latter assessment is made by first examining the specific statutes on whistleblowing that exist in the Norwegian and the English legal systems. According to Swedish law, an employee’s freedom of expression and right to criticize is dependent on whether the employee in question works in the public or the private sector. Employees working in the public sector are protected by the constitutional freedom of expression which, with a few exceptions, gives them a right to publish information on whatever subject they prefer. Whether the information is given to the authorities or to the media is insignificant. Meanwhile, employees working in the private sector have no constitutional rights in relation to their employer. The reason is that the constitutional freedom of expression is only applicable between an individual and a government authority or organ. Their freedom of expression and right to criticize is instead mainly regulated by contract and case law, but also to a certain extent by laws, such as the trade secret act. The level of protection is dependent on various factors, the most important of which are the degree of seriousness of the malpractice in question and whether the revelation of it has been made internally or externally. However, thanks to the strong security of employment in Swedish law, also private sector employees are granted a relatively generous protection against their employers’ intervention following a disclosure. Legislation particularly aimed at protecting whistleblowers is nevertheless non-existent. The thesis is mainly dedicated to the Swedish regulation in the field, but a general view concerning the regulation of whistleblowing internationally as well as according to Norwegian and English law is given in its latter part. The idea is that the comparison between these systems will provide the author, and the reader, with a basis for drawing one’s own conclusions about the advantages and disadvantages of the Swedish protection of whistleblowers and whether there is room for improvement. The matter of whistleblowing has lately been a highly noticed topic of conversation, which is probably connected to the fact that a number of corporate scandals have been given a lot of attention in the media. There are tendencies pointing towards a change of approach concerning whistleblowing and the protection of whistleblowers. Among other things, the Swedish constitutional freedom of expression has been extended so that it is now comprises also employees working in a business where the local government and/or county council has a predominant right of decision. Also, the right of public sector employees not to be the target of any detriments as a consequence of having made a disclosure has been reinforced. Internationally, the Council of Europe has recommended its member states to revise their national legislation and to contemplate a convention on whistleblowing. According to the comparative analysis made, the protection of whistleblowers in Sweden, Norway and England is similar, at least to a large extent and notwithstanding that the Swedish system lacks statutory provisions on the matter. Yet, addressing only public sector employees, the protection awarded by Swedish law is without doubt the strongest one. Another significant dissimilarity between these legal systems is that, contrary to what is the case according to the law in Norway and England, the possibilities of Swedish private sector employees to disclose wrongdoing can be limited by contractual obligations, as long as they are not considered unreasonable. The existence of such a contract will have an impact on the level of protection awarded following a disclosure. The author’s conclusion de lege ferenda is that legislation of some kind would be desirable. The Norwegian regulation could serve as model, since it encourages internal whistleblowing and simultaneously makes it possible to keep the identity of the whistleblower confidential.

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