Written by
Bill to amend the Working Environment Act – waiver of duty of confidentiality by consent
The Ministry of Employment has tabled a bill to allow waiver of the special duty of confidentiality of the Working Environment Authority subject to consent.
Written by
Selma Carøe
Forfattere
Under the current health and safety legislation, the Working Environment Authority (WEA) has a special duty of confidentiality, which means that the WEA may not disclose to employers or others that it has received a complaint. The purpose of the special duty of confidentiality is to protect employees from negative reactions by granting them anonymity when they file a complaint about working environment conditions to the WEA. At present, there are no exceptions to the special duty of confidentiality.
As a result of the duty of confidentiality, the WEA cannot present a complaint to the employer in connection with an inspection. Also, the WEA cannot use the content of the complaint, such as photos and/or video recordings, as part of the documentation forming the basis of a possible decision on violation of the Working Environment Act, as this would reveal that the WEA has received a complaint and disclose the content of the complaint.
This may prevent the WEA from investigating the circumstances and establishing violations of the health and safety legislation, even when the complaint gives rise to a specific suspicion of violation of the health and safety legislation.
The bill therefore proposes that an employee filing a complaint with the WEA should be able to give digital consent to waiving the special duty of confidentiality of the WEA.
If the special duty of confidentiality is waived, the WEA will be able to disclose information about the complaint to the employer and others, e.g. that the WEA has received the complaint, who the complainant is, the content of the complaint, and that the WEA will conduct an inspection on the basis of the complaint.
It is a condition for obtaining consent that the complainant in question is at least 18 years of age, understands the consequences of waiving the special duty of confidentiality and is capable of deciding whether or not to maintain the confidentiality of the complaint.
Consent must be given digitally and, thus, cannot be given in writing or verbally. Consent can only be given for the specific complaint and, therefore, not for previous or future complaints.
The WEA must inform persons considering waiving the special duty of confidentiality in order to ensure that their decision is made on an informed basis. This includes information on what the complaint may be used for, any consequences of a waiver and the fact that consent cannot be withdrawn.
The option of giving consent will apply to all persons who file a complaint about working environment conditions with the WEA, including employees and citizens. If a complaint is filed jointly by several persons, it will be a requirement that all persons give their consent before the special duty of confidentiality is waived.
The waiver means that the complaint will then be subject to the usual rules on access to documents under the Public Administration Act and the Freedom of Information Act.
The bill also specifies that the special duty of confidentiality only applies to complaints about working environment and not to other types of complaints, such as complaints about decisions by the WEA. This is what applies under existing law.
The bill is proposed to take effect on 1 July 2025.
Norrbom Vinding will keep an eye on the legislative process and provide an update when there are new developments regarding the amending executive orders.
The content of the above is not, and should not be a substitute for legal advice.
Forfattere