Eastern High Court judgement narrows Scope of Whistleblower Protection
A recent judgment from the Eastern High Court provides important clarification on the formal requirements for obtaining protection under the Danish Whistleblower Act.
The ruling confirms that only reports submitted through an established whistleblower scheme—or lawful public disclosures—can trigger the Act’s protection. Internal inquiries directed to managers, HR departments, or legal units fall outside the statutory framework.
This decision marks a notable tightening of the interpretation of the Whistleblower Act and has significant implications for both employers and employees.
Facts of the case
The case concerned an employee who believed they had been subjected to reprisals after having raising issues with the company’s management regarding improper behaviour. However, the employee had not submitted a report through the company’s formal whistleblower scheme and instead had only raised concerns with the employee’s immediate manager and the legal department.
The central legal question was whether such internal communications could qualify as a “report” within the meaning of the Whistleblower Act, thereby granting the employee whistleblower status and the associated protection against retaliation.
Legal framework- Whistleblower Act
The Whistleblower Act contains a clear formal and mandatory reporting requirement as a precondition for legal protection.
Pursuant to the Act an employee will only have protection if:
- A report is made through an internal whistleblowing scheme.
- A report is made through an external whistleblowing scheme, or
- under specific conditions a lawful public disclosure is made.
Reports or complaints outside of the above routes such as inquiries to managers, HR, lawyers or other internal bodies will not count as protected reports and thus the employee will not qualify for whistleblower status.
The Act therefore imposes a strict procedural requirement on the whistleblower.
The High Court’s decision
The Eastern High Court found that the employee had not made a report covered by the protection of the Whistleblower Act. The court relied on the explicit statutory requirement that the report must be made through a designated whistleblower scheme or as a lawful public disclosure.
In its judgement the court stated:
“Since, according to the Whistleblower Act, it is a condition for a whistleblower to be protected under the Act that the whistleblower has made a report to a whistleblower scheme or made public in accordance with the applicable rules, the employee is not protected under the Whistleblower Act.”
As the conditions set out in the Whistleblower Act had not been met, the claim for compensation was dismissed as there were no grounds for the claim to succeed.
Significance for employers
The decision clarifies and tightens the framework for whistleblower protection. It is not enough for an employee to raise concerns internally – the protection requires a formal report via the whistleblower scheme.
However, the ruling also emphasised several practical considerations for employers including, the requirement for clear and documented reporting channels so employees understand how to submit a formal whistleblowing complaint. In addition, the ruling also stated that companies should ensure that HR, managers and legal departments are trained to distinguish between normal employment complaints and whistleblower reports,
However, the judgment underlines that internal discussions, dialogues or reports of concern do not trigger the special legal protection given to whist blowers.
Observations
This decision is expected to have a wide impact across both public and private sectors. By adopting a restrictive interpretation of the protection mechanism, the High Court provides greater clarity but also narrows the circle of individuals who qualify for whistleblower status.
The ruling reinforces the need for strict adherence to statutory procedures and underlines the central role of formal whistleblower schemes in Denmark’s whistleblower protection system.
