New ruling regarding the Danish Whistleblower Act
Background of the case
In March 2022, the employee voiced concerns to his immediate superior about the municipality's potential breach of applicable procurement rules in regard to the use of a specific IT-system for which the employee had organisational responsibility.
As the issue was not addressed by the employee's superior, the employee submitted a report to the municipality's whistleblower scheme on 29 April 2022. The employee did not report anonymously. The report was investigated internally by the municipality's whistleblower unit.
Following the report, the employee was called for a status meeting with his supervisor which resulted in the responsibility for the IT-system being reassigned to two other employees while the employee who submitted the whistleblower report should focus on other areas going forward.
Shortly after the status meeting, the employee was placed on sick leave, and after an extended period of illness, the employee was dismissed in December 2022.
The employee was represented by his union before the court. The employee argued in court that he had suffered retaliation following his report to the municipality's whistleblower scheme. He also argued that the dismissal was directly related to the report made to the whistleblower scheme. Consequently, the employee claimed compensation in accordance with the Danish Whistleblower Act at an amount equal to 12 months' salary due to the employee's seniority.
The Court’s findings
Initially, the Court made an assessment regarding the burden of proof. According to the Danish Whistleblower Act, if a whistleblower is able to prove that the whistleblower submitted a whistleblower report and experienced a detriment or disadvantage, it is up to the employer to prove that such detriment or disadvantage was not a result of the employee submitting a whistleblower report.
In the present case, the parties were in agreement that the employee had made a report to the whistleblower scheme. Furthermore, the court found that the reassignment of the responsibility for the specific IT-system could be considered detrimental to the employee.
Consequently, the employee had been exposed to retaliation in the form of disadvantageous treatment following his whistleblower report. Therefore, the burden of proof shifted to the municipality which had to prove that these two circumstances were not correlated.
The court found that the municipality was unable to prove that the reassignment of responsibilities was not a result of the employee's whistleblower report and ruled in favour of the employee on this point.
However, the court did not find that the dismissal of the employee following a long-term sick leave of 10 continuous months was related to the employee's whistleblower report. Neither did the court find that the reassignment of responsibilities could be considered as a degradation.
As the municipality was not able to prove that the reassignment of responsibilities was not a result of the employee's whistleblower report, the municipality was ordered to pay a compensation of DKK 100,000 to the former employee based on an overall assessment of the circumstances, specifically that the responsibility of the IT-system was reassigned from the employee following the whistleblower report and that the IT-system was the subject of the whistleblower report.
The ruling is among the first decisions related to the Danish Whistleblower Act and it is therefore expected to set a precedent for future rulings based on the Act. The ruling illustrates the application of the Danish Whistleblower Act's special rule on the burden of proof in cases regarding retaliation under the Whistleblower Act and will likely also provide an indication for future cases of the compensation level for other types of retaliation than dismissal and degradation.
Both parties can appeal against the ruling until 30 October 2024.