Eastern High Court: Complaint directly to management did not provide protection under the Whistleblower Act

Author: Christian Bonne Rasmussen (partner) and Nanna Heisel (associate)

Between 20 August 2024 and 30 October 2024, a municipal employee sent several complaints to managers and executives in the municipality as well as the municipality's chief legal officer. The complaints concerned various matters and were primarily directed at the employee's manager. It was not clear which other individuals were the subject of the criticism, and which matters were being criticized. The employee had also complained about matters that did not relate to his own work tasks, but more general issues in the municipality.

While the municipality was investigating the complaints, the employee was suspended with full pay. Due to the number and nature of the complaints, the municipality became concerned about the employee ability to perform his duties, as he appeared increasingly focused on criticizing and finding fault with the municipality, which contributed to unrest in the workplace. The employee subsequently filed a lawsuit against the municipality, claiming the suspension was unlawful and seeking compensation under the Danish Whistleblower Act.

Eastern High Court: The employee was not covered by the Whistleblower Act

Initially, the Eastern High Court noted that the Whistleblower Act applies to reports concerning violations of EU law or other serious violations of the law or other serious matters, and that trivial reports or reports concerning internal personnel matters were not covered by the Act. Next, the Eastern High Court ruled that protection under the Act was conditional upon the person concerned having made a report to an internal whistleblower scheme in accordance with Chapter 3 of the Act, an external whistleblower scheme in accordance with Chapter 4 of the Act, or an external whistleblower scheme in institutions, bodies, offices, or agencies under the European Union. The High Court also noted that the Act applies if the whistleblower had made a public disclosure in accordance with the Act.

In the specific case, the employee had neither complained to the municipality's whistleblower scheme nor made any internal or external report or disclosure in accordance with the Act. Instead, the employee had complained directly to the management and the municipality's chief legal officer. On that basis, the Eastern High Court found that the employee was not protected by the Whistleblower Act.  

Littler notes

The ruling confirms that, in order to be protected under the Danish Whistleblower Act, it is necessary that the whistleblower either reports the matter to the organization's internal whistleblower scheme through the specific channels prescribed by the policy, or reports it to an external whistleblower scheme, e.g. the National Whistleblower Scheme administered by the Danish Data Protection Agency.

In addition, under very specific circumstances, a person may publicize information and obtain protection under the Act.

It is not sufficient for the employee to simply inform management of the circumstances that have come to their attention in order to be protected under the law.