Since 2017, there is a special law that gives employees of certain private enterprises the same right to provide information to the media, without risking reprisals, as public employees have. This ban on reprisals is broad and applies in principle to all forms of actions against the employee, from reprimands to summary dismissals. However, not the entire ban on reprisals is criminally punishable. Only certain specifically designated actions are punishable.
One form of criminal action is that the employer imposes a disciplinary sanction on the employee for exercising his or her freedom to communicate information. The Supreme Court's decision concerns the detailed assessment for an action to constitute such a criminally punishable imposition of a disciplinary sanction.
The Supreme Court notes that an employer’s issuing of a warning, if given due to an employee exercising his or her freedom to communicate information, may constitute a criminally punishable act. But in order to constitute a criminal offence, the warning must have a strikingly firm message. If the employer indicates that the employee has committed serious misconduct and threatens to take serious action, this typically means that the action constitutes a criminally punishable imposition of a disciplinary sanction.
In the present case, the employee received a document stating that she had breached her obligations under her employment contract through disloyalty, that this had harmed the company, that the company regarded this as misconduct and that the company would not accept her continuing to act in this way. Furthermore, it was stated, inter alia, that the company took the incident very seriously and that the company recalled that a breach of the employment contract could ultimately lead to dismissal or summary dismissal. Overall, the Supreme Court finds that the issuing of the warning carried a strikingly firm message and that it therefore constituted a criminally punishable imposition of a disciplinary sanction. This means that two representatives of the company are convicted of violating the Act on Protection for Informants in Certain Private Enterprises. They are sentenced to day fines.
"In its ruling, the Supreme Court has made it clear that an employer who gives an employee a warning because he or she has provided information to the media can in some cases be convicted of a crime. It doesn't matter how the employer classifies the message. The decisive factor is whether the warning carries a firm message of reprisal to the employee", says Christine Lager, who was one of the judges in the case.
Case no. B 6856-23
Case name
"Care company's reprimand"
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