Skyddet för visselblåsare i arbetslivet: en konstitutionell och arbetsrättslig studie
2015 (Swedish)Doctoral thesis, monograph (Other academic)
The purpose of the study is to contribute to the knowledge on the protection of employees who report or disclose wrongdoings at work. To that end, different legal rules are analysed and discussed; the conflict and interaction between constitutional, European and labour law regulation is of particular interest. The more specific research questions are i) how different rules that protect whistleblowers interact with each other, ii) if there are common patterns in the regulation in the different areas of law, iii) how duties to report wrongdoings relate to the protection of reporters and iv) if the current regulation to protect work place whistleblowers is appropriate.
One conclusion from the study is that the labour law protection of whistleblowers increasingly stems from constitutional law, including the constitutionally anchored European convention; the current legal development can be described as a constitutionalisation process of labour law. As the importance of constitutional law in labour disputes increases, questions about interpretation, delimitation and application of constitutional law in labour disputes require more theoretical and methodological attention.
Another conclusion from the study is that the traditional disparity between the protection in the public and the private sector is decreasing. This is the result of three different interacting developments. Firstly, the legislator has expanded the scope of the protection for the constitutional freedom to provide information for publication (meddelarfrihet) not only to apply in strictly public organisations, but also in municipal corporations and some other organisations of public character. Secondly, the Labour Court has in its case law also protected private sector whistleblowers, particularly when public financing of a private organisation or another important public interest is at stake. Thirdly, the European Court has taken the view that private sector whistleblowers also should be guaranteed freedom of speech protection. The convergence of the degree of protection provided in the public and private sector can be explained by the increased attention to protection of third parties and the public at large from harm resulting from wrongdoings at work, whether in public or private sector.
The protection of whistleblowers in Swedish law is overall strong and appropriate. There are nevertheless some weaknesses in the protection. One flaw is that while the employment protection is strong, the labour law protection against retaliation during employment is weaker; even if the principle that the employer organises and leads the work has its limits in the principle of good labour market practice (god sed på arbetsmarknaden), the application of the principle of good labour market practice is limited and it is uncertain under what circumstances non-material damages can be awarded to a whistleblower who has suffered reprisals. Another weakness in the protection of whistleblowers is that there are frail protections against retaliation from co-workers.
Legislation and proposals for legislation to protect whistleblowers have increased. There is however a risk that these new initiatives create increased legal ambiguity, notwithstanding the aim to strengthen the protection; a result of these initiatives may therefore unfortunately be that while the protection is getting stronger on paper, the initiatives result in increased legal uncertainty.
Place, publisher, year, edition, pages
Stockholm: Jure, 2015. , 374 p.
whistleblowers, freedom of speech, European Convention on Human Rights, labour law, retaliation, trade secrets
visselblåsare, yttrandefrihet, Europakonventionen, arbetsrätt, repressalier, meddelarfrihet, kritikrätt, lojalitet, företagshemligheter
Law and Society
Research subject Private Law
IdentifiersURN: urn:nbn:se:su:diva-118678ISBN: 978-91-7223-598-4OAI: oai:DiVA.org:su-118678DiVA: diva2:826397
2015-09-18, De Geersalen, Geovetenskapens hus, Svante Arrhenius väg 14, Stockholm, 10:00 (Swedish)
Westregård, Annamaria, docent
Sandgren, Claes, professor