Whistleblower schemes

1. Who should establish an internal whistle-blower scheme?

The Whistle-blower Act obliges a large number of companies and public authorities to establish an internal whistle-blower scheme.

The main purpose of an internal whistle-blower scheme is to provide protection to whistle-blowers who help to identify breaches of the law or other serious matters. The Whistle-blower Act means that no reprisals can be exercised against whistle-blowers.

Among other things, the Whistle-blower Act stipulates that by 17 December 2023 at the latest, all private companies, public authorities, foundations, associations and self-governing institutions with between 50 and 249 employees must establish an internal whistle-blower scheme, which enables employees to submit reports. For companies with 250 or more employees, the requirement to establish an internal whistle-blower scheme should already have been complied with from 17 December 2021.

The obligation to establish an internal whistle-blower scheme only arises when a company has had an average of 50 or more employees in the four preceding quarters. However, this does not apply to newly created jobs, where it is not possible to carry out this count for four full quarters.

The calculation of the number of employees includes all employees who receive remuneration for working in employment relationships. This means that part-time employees, young workers, etc. must also be included.

2.Who can submit a report in an internal whistle-blower scheme?

The “employees” group of persons

The Whistle-blower Act states that an employer with more than 50 employees is obliged to establish an internal whistle-blower scheme in which employees can report information. This includes a requirement that the employer must make the internal whistle-blower scheme available to their employees. Conversely, the employer is not obliged to make the whistle-blower scheme available to other groups of persons. It is up to the individual company whether to allow other groups of people than employees to use the scheme.

The term employee should be interpreted broadly. The term employee primarily refers to full-time employees, but part-time employees, temporary employees and temporary agency workers are also included.

Other groups of persons

The employer is only obliged to make the whistle-blower scheme available to the company’s employees. However, the employer may choose to let other groups of people use the scheme. The Whistle-blower Act itself lists a number of groups of people, including:

• The self-employed
• Shareholders and members of the executive board, the board of directors, etc.
• Volunteers
• Trainees
• Former employees 

It is not a requirement that the internal whistle-blower scheme is made available to above-mentioned groups of persons, but if the employer chooses to do so, these persons will enjoy protection against reprisals in the same way as the employees.

In addition to the listed groups of persons, the employer may choose to extend the whistle-blower scheme to other persons, but these persons will not enjoy protection under the Whistle-blower Act, regardless of the fact that the whistle-blower scheme has been made available to them.

3. The requirements for an internal whistle-blower scheme

Designation of internal whistle-blower unit

When the employer is obliged to establish an internal whistle-blower scheme, the employer is required to appoint an internal whistle-blower unit. The internal whistle-blower unit must be an impartial person or department that will receive the reports and have contact with the whistle-blower. Having an impartial whistle-blower unit means that the whistle-blower unit must treat the reports objectively.

It is up to the individual employer to appoint the person or persons, or the department that will carry out the tasks. The function can be placed, e.g., with one or more HR employees, legal employees or a board member. It is not a requirement under the law that independence from the workplace’s management is ensured, neither organisationally nor financially.

Employees who are appointed to handle the reports can at the same time also perform other functions in the workplace and carry out other tasks. However, it is crucial that the independence of the whistle-blower unit is ensured in its functioning. Among other things, this means that, as a general rule, a designated employee must not be given instructions on how the employee should handle and follow up on specific reports.

An employer always has the option of appointing a third party to perform the function of whistle-blower unit. The employer may, for example, choose to appoint an external Attorney or other third party to act as a whistle-blower unit and be responsible for the administration of the whistle-blower scheme.

The tasks of the whistle-blower unit

The whistle-blower unit is tasked with managing and administering the whistle-blower scheme by receiving reports and maintaining contact with the whistle-blower, following up on reports and providing feedback to the whistle-blower.

The whistle-blower unit’s duty of confidentiality and ability to disclose

An internal whistle-blower scheme must be structured, established and operated in such a way that confidentiality is ensured in regard of the whistle-blower’s identity.

The whistle-blower unit is subject to a duty of confidentiality under the Whistleblower Act in regard to information about the whistle-blower’s identity and information included in the report. The duty of confidentiality also applies to persons outside the whistle-blower unit who, in connection with a lawful disclosure, become aware of information about the whistle-blower’s identity and information included in the report.

If the whistle-blower unit or other persons who become aware of confidential information in connection with lawful disclosure breach their duty of confidentiality through gross negligence or intentionality, they may be punished with a fine.

Only in certain special cases can the whistle-blower unit disclose information that makes it possible to identify who the whistle-blower is. The whistle-blower unit may, for example, disclose information about the whistle-blower’s identity to public authorities without the whistle-blower’s consent, when the disclosure is made in order to prevent breaches or in order to safeguard the right of defence of the persons concerned.

Furthermore, information can always be disclosed if the whistle-blower gives his/her consent to the disclosure.

4. Protection under the Whistle-blower Act

The Whistle-blower Act cannot be deviated from to the detriment of the whistle-blower. This means that a whistle-blower cannot validly waive the rights that are due to him or her under the Act. For example, a whistle-blower cannot validly renounce his/her protection against retaliation.

However, in order to be protected, it is a prerequisite that the whistle-blower gave the information in good faith that it was correct at the time of reporting, and that the report relates to matters that fall within the scope of the Act. Persons who knowingly report or publish false information, however, do not enjoy protection under the Act.

Protection under the Act means, first and foremost, that the whistle-blower enjoys full protection against retaliation. Retaliation is understood to mean any form of unfavourable treatment in response to a report or publication. That term covers, inter alia, suspension, dismissal, demotion, transfer of duties, transfer, harassment and any disciplinary action.

The Codex Advokater whistle-blower scheme

Codex Advokater assist both large and small companies with the establishment and administration of whistle-blower schemes. In this connection, we collaborate with Danish Whistle-blower Software, which meets all legal requirements and guarantees maximum security and confidentiality for your employees.

If your company would like further information about the Whistle-blower Act and our whistle-blower schemes, you are welcome to contact us at https://www.codexlaw.dk/contact/?lang=en