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The EU Whistleblowing Directive: a Swedish perspective

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On 29 September 2021 Sweden passed its new Whistleblowing Act (the "Act"), becoming the second EU Member State (after Denmark) to fully transpose the Whistleblower Protection Directive (the "Directive") into national law, in advance of the 17 December 2021 deadline.

Fylgia is an Ecomlex partner of Fieldfisher and leading Swedish law firm which deals with many areas of commercial law. Anneli Lönnborg is a Partner at Fylgia who specialises in Labour Law and Dispute Resolution, and Fabian Lidåkra is an Associate with a focus on Procedural Law.

In our latest insight on whistleblowing, Anneli and Fabian answer questions on the Act and its implications for Swedish employers.

What has been the position in relation to whistleblowing protection in Sweden prior to the Act?

Whistleblowing legislation has been in place in Sweden since 2016 as a result of the Whistleblowing Act (Visselblåsarlagen) (the "2016 Act"), a major development at the time which introduced significant legal protection for employee and consultant whistleblowers and, consequently, new and serious obligations for employers.

The 2016 Whistleblower Act, which protects whistleblowers from dismissal or re-deployment, is limited to cases where an employee or consultant reports serious misconduct of a key person within the business (for example, criminal offences which could lead to a prison sentence).

While the 2016 Act placed business-specific demands on whistleblowing systems for businesses in the financial sector, the Act is the first cross-sectoral regulation on whistleblowing systems in Sweden.

Which companies will the Act apply to in Sweden?

The Act requires employers in the private sector with 250 employees or more, and employers in the public sector, to implement a whistleblowing scheme by no later than 17 July 2022. Private sector companies with between 50 and 249 employees have until 17 December 2023 to fulfill this obligation.

Will individual companies within a larger group structure be required to implement separate whistleblowing systems?

Currently, many international companies in Sweden use joint whistleblowing schemes. The Act provides the possibility for this practice to continue, provided that each individual entity with 50 employees or more implements its own whistleblowing system for internal reports. These internal systems will be able to be shared with other group entities with less than 250 employees. Group entities with 250 or more employees must not share their internal whistleblowing systems with other entities.

This limitation on using a joint whistleblowing system does not apply to the public sector.

Are there any other things employers in Sweden should be thinking about?

The Act includes a number of key enhancements to existing whistleblowing protections and measures, extending the scope of the Directive to not only protect reports of violations of certain areas of EU law, but also reports regarding serious violations of Swedish law, as well as other serious misconduct (for example, criminal offences). While this means that the scope of protection afforded under the Act remains unchanged from the 2016 Act in relation to the seriousness of the misconduct, there will no longer be a requirement that the misconduct was committed by a key person within the employer’s business.

The Act stipulates that, unless there is an immediate and obvious risk (such as to health and safety or the environment) or an external report would likely lead to reprisals, a whistleblower should first raise an external concern to the relevant appointed authority before anything is made public (for example, via the media). 

However, this does not affect the protection afforded by The Freedom of the Press Act (which, subject to certain exceptions, declares the freedom of every Swedish citizen to publish their thoughts and communicate information on any subject).

Historically, it has been possible to identify a whistleblower in the public sector, as the whistleblowing report could be deemed as a public document and, therefore, be publicly accessible. This has been rectified in the Act.

Those companies to which the Act shall apply in July 2022 must ensure that all necessary policies, guidelines and procedures are in place to comply with the Act. Companies with an existing whistleblowing system need to review their current policies and guidelines or consider preparing new procedures now. Employees and consultants must have easy access to information on how to make a report through both the internal and external whistleblowing system. Training and awareness, especially for management, is also key.

The scope of protection set out in the Act may be extended through collective bargaining agreements, however, it is important to highlight that the protection cannot be altered to reduce the minimum level afforded under the Act. Any such agreed limitations would automatically be void.

Companies considering outsourcing whistleblowing systems to third parties must be aware of the General Data Protection Regulation, especially in relation to data processors.

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Areas of Expertise

Whistleblowing