AD 2025 No. 47 – Incident reports was not covered by the Swedish Whistleblower Act; no public interest

A surgeon’s repeated incident reports within the employer’s operations were not deemed to concern matters of public interest. The Act (2021:890) on the Protection of Persons Reporting Irregularities (the Whistleblower Act) was therefore not applicable, and the surgeon’s claim for damages was dismissed. This is the Labour Court’s first ruling on the 2021 Whistleblower Act.

A plastic surgeon worked at a private specialist clinic and made a large number of internal reports regarding irregularities within the clinic’s operations. Around twenty of these reports concerned an anaesthesiologist who also worked at the clinic.

In January 2022, an acute conflict arose between the surgeon and the anaesthesiologist, resulting in the surgeon being suspended from work for a few days. The surgeon was subsequently moved to other work duties for a period, and in October 2022 her employment ended by mutual agreement between the employer and the surgeon.

The surgeon then brought a claim against the employer, seeking general damages for violations of the Whistleblower Act. According to the surgeon, the employer had attempted to prevent her from reporting irregularities under the Act, subjected her to reprisals as a result of her reporting when she was suspended and reassigned, and breached the reporting obligations under the Act.

The employer contested the claim.

Legal framework

The Whistleblower Act provides that an employer may not prevent or attempt to prevent an employee from reporting under the Act. Nor may the employer subject the reporting person to reprisals as a result of the reporting. However, for the protections of the Whistleblower Act to apply, the Act must be applicable in the individual case, which requires that the reported information falls within the scope of the Act. According to Chapter 1, Section 2 of the Whistleblower Act, the Act applies when a person, in a work-related context, reports information about irregularities in which there is a public interest in disclosure.

The Labour Court’s assessment

The Labour Court first examined whether the 2021 Whistleblower Act was applicable. Since the alleged reprisals occurred in January 2022, the Court found that the new Whistleblower Act was applicable, even though the surgeon’s reporting had taken place before the Act entered into force.

The Court then proceeded to assess whether the surgeon’s reporting concerned such irregularities where there was a public interest in disclosure. The Court noted that the burden of proof lies with the complainant – in this case, the surgeon – to show that the reported irregularities were of public interest. The Court also stated that the standard of proof could not be set lower than what normally applies in civil cases, meaning that the surgeon had to prove that a public interest existed.

After reviewing the evidence, the Court found that the surgeon had not demonstrated that the reported irregularities were of public interest. The surgeon had argued that her reports concerned irregularities of public interest, as they related to the alleged incompetence of the anaesthesiologist, which was said to have led to cooperation and communication problems affecting patient safety. However, the Labour Court found that this was not substantiated. The Court held that the fact that individual incidents may have been serious did not mean that there were irregularities of public interest at the clinic. Instead, the Court found that several of the incident reports cited by the surgeon appeared to be due to cooperation and communication problems between the surgeon and the anaesthesiologist, and that reporting arising from a conflict between a reporting person and another employee at the workplace is generally not of public interest. Such work environment issues, the Court stated, should be addressed in other ways.

In summary, the Court found that the surgeon had not proven that the reported irregularities were of public interest. The Whistleblower Act was therefore not applicable, and the employer’s actions were not covered by the Act. The surgeon’s claim was dismissed.

Read the full judgment here.

Setterwalls’ comments

This case is the first in which the Labour Court has examined the new Whistleblower Act. The case was appealed from the district court, which also dismissed the claim, but on different grounds. Among other things, the district court considered that the reported irregularities were of public interest and that the Act was therefore, in principle, applicable.

It can be noted that the Labour Court has taken a significantly more restrictive approach than the district court in assessing whether the reported circumstances were of public interest. The Court’s statements that “the fact that individual incidents, in an operation of this kind, have been serious does not mean that there was a matter of public interest at the clinic” and that “reporting arising from a conflict between a reporting person and another employee at the workplace is generally not of public interest. Such work environment issues should be addressed in other ways” are clear indications that the Act has a much more limited scope of application than many may have assumed.