On 29 June 2021, Denmark passed the Whistle-blower Protection Act (Act No. 1436), which entered into force on 17 December 2021.
On a positive note, the Ministry of Justice of Denmark has published three guides for:
Download the original guides here.
Under the Danish Whistle-blower Protection Act, in addition to reports of breaches of EU law, serious criminal offences or other serious matters that do not necessarily have to be linked to a specific criminal offence are subject to reports. In all three guides, there is a catalogue listing serious criminal offences, serious violations of specific or other legal provisions, harassment and serious conditions by way of example, in order to provide assistance in classifying which violations fall under the Whistle-blower Protection Act.
For reporting purposes, it is sufficient if the whistle-blower had reasonable grounds to believe (i.e. believed in good faith) that the information reported or published was accurate at the time of the report or publication and that the information fell within the scope of the Act. It is left open what could be a sufficient reason. Examples from practice are missing here.
For external reporting, there is a reference to the reporting office of the Danish Data Protection Authority, as well as other offices at the Defence Intelligence Service and the Police Intelligence Service.
Regarding the calculation of the number of employees of 250 and 50, the following regulation has been made: The number of employees includes the number of employees on average over the last four quarters. If a company has more than 250 employees based on the average of the last four quarters, it will be subject to the Whistle-blower Protection Act as of 17 December 2021. This will also apply from 17 December 2023 for the calculation of the lower limit of workplaces with 50 employees or more.
The whistle-blower cannot be held liable for accessing information if obtaining it does not in itself constitute a criminal offence. The whistle-blower cannot be held liable if he or she discloses the contents of documents to which he or she has lawful access, or if he or she makes copies of such documents or removes them from the premises of the organisation in which he or she is employed. This applies even if it violates contractual provisions, the employment contract or other regulations. The whistle-blower may be held liable if the appropriation constitutes an offence in its own right, such as hacking, unauthorised interception or recording conversations between others.
However, the employee may be required to prove the need for disclosure. There is a lack of explanation of the situations in which the need might exist.
The law allows employers to dismiss a whistle-blower if it is “unreasonable” to maintain the employment relationship. According to section 28 of the STCK (2), the wording of the law writes: “If an employee has been dismissed in breach of Article 8(1), the dismissal shall be rejected and the employment relationship shall be maintained or restored if the employee so wishes. However, this does not apply if, in exceptional cases and after weighing the interests of the parties, it is manifestly unreasonable to require the maintenance or restoration of the employment relationship. It is still necessary to weigh the interests of both parties, which have been presented here in a supplementary manner.
According to Whistle-blower Network News, the Danish Whistle-blower Protection Act does not provide mechanisms to protect employees from retaliation. The law says nothing about how an aggrieved worker can be reinstated or compensated for damages – nor does it define the concept of damages.
The design of the internal reporting channel is the responsibility of the responsible bodies. However, the Ministry of Justice focuses on IT-based whistleblowing systems. They provide the technical solution for anonymous communication between the whistle-blower and the reporting office.
DISS-CO’s Smart Integrity Platform as a cloud-based software solution ensures encrypted communication and complies with the recommendations of the Danish Ministry of Justice. Furthermore, the additional live chat function of the Smart Integrity Platform offers the option of anonymous or confidential advance communication. This not only creates trust and eliminates misunderstandings, but the live chat function also ensures a reduction of non-relevant messages. This saves time and makes case processing more efficient. Read here about the many features and benefits of the Smart Integrity Platform.
In addition, dashboards and questionnaires can be customised. Task management ensures effective handling of internal procedures for the purpose of clarification. Interfaces to other systems offer the possibility to process further relevant data. The Smart Integrity Platform is a web-based solution with many useful functions, at the best price-performance ratio.
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