Visselblåsarskydd inom privat sektor : - en avvägning mellan två grundläggande fri- och rättigheter
Sammanfattning: By Swedish law everyone is guaranteed freedom of speech, to be free to express personal opinions without limitation or risk of any form of punishment. Freedom of speech is achieved through freedom of information and messenger protection, though limited, as it only applies to the general public. In practical terms, this constitutional freedom and right do not cover private employees. This limitation has also been the topic of discussion in Swedish public debate in regards to whistleblowing. Whistleblowing refers to the act to which an employee reports misconduct of public interest that occurs in the workplace. Reporting on misconduct has a critical societal function with clear incentives to whistleblow in favor of both the workplace and the public interest, though employees still seem to refrain. As a result of deficient whistleblower protection around the EU, a new law will be implemented in Sweden in 2021, per EU directives. The new law aims to clarify the legal situation for both the private and public sectors with strengthened protection that workers use. The thesis is based on this objective and the debate on differentiated constitutional freedoms and rights between the sectors. The essay deals with whistleblowing and examines current law in the private sector, specifically its relation to freedom of information and messenger protection. By examining current legislation on protection against retaliation for whistleblowers, the thesis sheds light on the more limited whistleblower protection in private employment versus constitutionally protected freedom of information and Messenger protection in public employment. The hypothesis also discusses whether future legislation, following EU directives, should allow for potential reservations about freedom of information and messenger protection in the private sector. The thesis considers that current law has no practical effect, mainly due to the private sector's lack of messenger protection. However, the hypothesis has shown substantial protection occurs at the expense of another fundamental freedom and right, freedom of contract. In addition, the differences found between the sectors are considered to be based on the polarized interests of employees and employers, where the limitations of the private sector have primarily been considered to serve the employer's interest in maintaining competitiveness. A problem of inequality between employees, based on their choice of employer, has also been identified. The thesis finds that a future law should primarily focus on finding a balance between the two interests, freedom of expression and agreement. Furthermore, new protection should strive for high trust and thus high practical effect. Lastly, the focus should also be on dealing with the possible established fears of sanctions with social consequences that could hinder workers from reporting.
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