- 02 Sep 2015
- Jens Harkov
An employee under notice was not entitled to compensation for the employer's breach of internal compliance rules. So the Danish High Court ruled in a recent case.
Employers can set up a whistleblowing scheme to provide employees with an opportunity to report irregularities. The details of the whistleblowing scheme will be set out in a whistleblowing policy. But what is the significance of such rules if the whistleblower is dismissed? This was the issue in this case before the Danish Western High Court.
A manager was having difficulties cooperating with a number of employees, which caused some disquiet among the employees. The manager's decision to report some of her employees for breach of the internal compliance rules only added to the problem. The manager believed that the employees had preferred some suppliers over others in return for receiving a number of benefits for themselves. However, shortly after reporting the employees, the manager was dismissed on grounds of her unwillingness to cooperate.
Not entitled to compensation
The manager believed that her dismissal was unfair, arguing that under the internal compliance rules whistleblowers were protected from dismissal until the irregularities reported had been investigated. The manager therefore claimed damages for the loss suffered by not being able to find new employment immediately after the end of the notice period.
The employer, on the other hand, did not believe that the compliance rules could lead to the manager being protected from dismissal in the period until the irregularities reported had been investigated. The employer also argued that the dismissal was based on cooperation issues alone – and thus had nothing to do with whistleblowing.
The matter ended up in the High Court, which held that the employer was in breach of the internal compliance rules by not investigating the report made by the manager before she was dismissed. However, the Court ruled in favour of the employer on the claim for damages because the manager had been employed less than a year and was therefore not entitled to compensation under the Danish Salaried Employees Act and, similarly, was not entitled to claim compensation under the internal compliance rules.
Norrbom Vinding notes
- that whistleblowers do not enjoy general protection against dismissal under Danish law, but that the dismissal of a whistleblower may be unfair depending on the circumstances; and
- that the legal effects of an unfair dismissal are normally exhausted by the provisions governing unfair dismissal in section 2b of the Danish Salaried Employees Act or other similar provisions; and
- that even an employee who after leaving the employer does not obtain new employment will usually not be entitled to claim compensation based on the fact that no new employment is obtained.