Free speech and the duty of loyalty

Sissel Trygstad examines employees’ rights in Norwegian workplaces.

Employees’ rights to speak out have never been stronger in Norway. The legal amendments that aim to reinforce the free speech of employees and the legal protection of those who act as whistleblowers have probably given Norwegian employees some of the strongest legal protections in Europe. The 2004 amendment to Section 100 of the Constitution has had an important impact on free speech in the public sector, which accounts for approximately one third of employees.

Expanding the field for workplace democracy

Pursuant to the amendment to Section 100 of the Constitution and the incorporation of provisions on internal notification in the Working Environment Act (WEA) in 2007, employees shall be protected against retaliation from their employer when giving internal or public notification of seriously censurable conditions. So far, Norway is the only Nordic country that has given employees a statutory right to notify. The amendments follow a tradition of workplace democracy, two core concepts of which are participation and co-determination, central concepts embedded in the Nordic model of labour relations. These statutory provisions follow a path reaching far back in time and culminating in 1977 and the introduction of the WEA. According to Kalleberg (1983), the WEA was essential in the progress towards establishing a more egalitarian society and a key instrument promoting democracy in the workplace. However, new provisions may mobilise quests for power by employees.

While the amendments were welcomed by trade unions, they were met with strong criticism from employers’ organisations, which feared that the legal changes would undermine the employees’ duty of loyalty. The amendments also contradicted the ideas on organisation and management that prevailed at the time, which strongly emphasised the managerial prerogative. Interests were mobilised and articulated both before and after the legal amendments were introduced.

Freedom of speech

The right to free speech is an essential precondition of democracy. Participating in discourse is deemed important for strengthening individual development and competence. Pateman (1970) is concerned with how participation promotes educational, intellectual and emotional development, and the workplace is seen as a key arena for training in politics. The general right to free expression is protected by Section 100 of the Norwegian constitution and by Article 10 of the European convention on human rights (ECHR).

As pointed out by Elvestad, employees enjoy the same freedom of expression as everybody else. Grounds must be given for restricting the freedom of expression of employees – not the other way round. Moreover, the government White Paper (nr. 26, 2003-2004:14) states that employees are likely to have an added motivation to participate in public debate when they possess specialised knowledge about an issue. Furthermore, it is pointed out that freedom of expression is essential in light of society’s need for information and open discourse. After these amendments were adopted, the parliamentary ombudsman ascertained that Section 100 of the constitution provides a stronger protection of the right of employees to free expression than the ECHR and that the right of employees to free expression now accorded with a direct interpretation of the Constitution.

Freedom of expression versus the managerial prerogative

Despite the fact that the right to free expression has been reaffirmed, there are limits on the matters for which employees may exercise this right. These restrictions stem from the duty of loyalty that we all have by virtue of our employment relationship. The requirement for loyalty will vary according to the position one occupies in the hierarchy. The freedom of expression is clearly restricted by proximity to the top management, due to the risk that the person who makes the disclosure will be identified with the enterprise, despite any assurances that this person speaks only on his or her own behalf (St. meld. nr. 26, 2003-2004, p. 104). In addition, it transpires that in the public sector, proximity to the political leadership is a key factor – the further one moves away from the political leadership, the greater the freedom of expression and vice versa.

Elvestad states that assessments of whether an expression is loyal or disloyal will be made in light of “a reasonable balancing of concerns for protecting the employee’s right of free expression against concerns for protecting the employer’s interests”. In this context, Olsen underscores the following elements as key issues in such a balancing act: the risk of identification with the employers, the truth of the disclosure, the form of expression, concerns for the public interest, the purpose of the disclosure, whether the disclosure is made internally or externally, whether the disclosure is in line with enterprise regulations and whether it conflicts with the employer’s legitimate interests. A main principle, however, is that it will take quite a lot for an act of expression to be restricted by duty of loyalty to an employer

Norwegian surveys

There have been discussions related to limitations of freedom of expression in the public sector. In a 2014 survey undertaken among the members of the Norwegian Nursing Association, Union of Education Norway and the Police Federation of Norway, the overwhelming majority of whom work in the public sector, approximately 40 per cent of the respondents stated that the top management had imposed increasing requirements for loyalty on them in recent years. Below we can see responses of Norwegian employees to different statements concerning freedom of expression:

Employee opportunities to express themselves publicly. N = 876
Employee opportunities to express themselves publicly. N = 876

First, a total of 54 per cent disagree or partly disagree with the statement that they feel free to answer questions from the press about conditions at their workplace, while 24 per cent agree or partly agree. Second, 30 per cent agree or partly agree that their opportunities to refer to serious wrongdoing at their workplace in a public forum are restricted by management. The share that disagrees or partly disagrees is approximately the same, 32 per cent. Third, a total of 34 per cent of all Norwegian employees agree or partly agree that their opportunities to refer to their workplace in a public forum are restricted by the work contract they have entered into with their employer. This pertains to statements that do not violate a statutory duty of confidentiality. Further analyses show that employees in the public sector consider their freedom of expression as significantly worse than employees in private sector. The differences are confirmed in regression analyses, when controlled for size of the company, education, gender, seniority and length of hours.

Lack of data makes it difficult to come to conclusions about the trend, but the parliamentary ombudsman expressed his concern in 2013 about the growing number of procedures and policies in the public sector that seemed to restrict and violate freedom of expression:

“The Ombudsman has long been aware of the risk of restrictions on freedom of expression as a result of internal procedures. The guidelines could easily become static, and unable to capture the legal developments. It seems that the Constitution’s strengthening of freedom of expression has not yet had the intended impact in practice.” (Parliamentary Ombudsman 2013: 8)

Several complaints to the ombudsman and the ombudsman’s handling of the complaints supported this statement (Trygstad, 2015).

How to explain the findings?

How can we explain our findings and the ombudsman’s concerns? The limits of what will be deemed acceptable or unacceptable expressions may fluctuate. Mahoney & Thelen show how key drivers of change (or no change) could remain latent if the rules, or in our context the provisions, are ambivalent, unclear or contested – which seems to be the case here. This paves the way for attempts to imbue the provisions with a content that breaks the clear linkage with democracy and freedom of expression. This can be achieved by what Mahoney and Thelen calls way of a redefinition or what Meyer and Rowan would call drift or decoupling. Both strategies will logically coincide with the norms inherent in the organisational models and management strategies that have prevailed in the public sector in recent decades, which emphasise the managerial prerogative, reduction in the number of management levels and a focus on efficiency and reputation.

In the public sector, organisational solutions and management ideals related to New Public Management (NPM) have had an impact on organisational structures and management principles, but trials with Lean Production have also been undertaken in public enterprises (Macann, 2015). These models have been propagated through itinerant recipes for organisational design, and according to Røviks studies, they have spread across countries and continents as ideals, or as what he describes as institutionalised standards.

A flattening of organisational hierarchies is a key dimension. In 2012, more than one third of all Norwegian municipalities had no management levels between the chief municipal officer and the service-producing unit, while almost the same share had one management level. This shows that a large proportion of all municipal employees are in close proximity to the top management and the political leadership. Hence, flatter hierarchies alter the requirements for loyalty, but may also change the need for governance and control. Direct management through clear rules and instructions has to a large extent been replaced by more indirect or disciplinary forms of control. Such forms include management by objectives and individual agreements or contracts between the employer and the employee. Increasing the employees’ sense of responsibility and loyalty to the development and growth of the enterprises and their activities has therefore become a key issue.

When seeking to focus on efficiency and build a reputation, it may be deemed important to avoid divergent statements and inconsistencies. Appearing to be consistent and speaking with a single voice are often regarded as important for engendering trust in the environment. Employees who are openly critical of the enterprise’s official strategy or point out errors or shortcomings may create unanticipated situations for the management. In a government enterprise, the public or politicians may request reviews or justifications. Requirements for loyalty may thus be strongly communicated. Our findings indicate that attempts are made to restrict the employees’ freedom of expression by way of communication rules and work contracts. Developments indicate that direct management by clear rules and instructions is being replaced by more indirect forms of control or discipline, including an emphasis on results and communication and information regulations. Being in control of what is said in public about the enterprise’s internal affairs, its products or services, will be a key strategy to avoid loss of efficiency in the form of noise, and will also be a decisive factor for building reputation.

Thus, the focus on loyalty, managerial prerogative, idea of streamlining the “production” and reducing wastage of material and immaterial resources may challenge genuine participation, involvement of employees. Further, it seems to have minimised the effect of the legal strengthening of the freedom of expression imposed in the Norwegian constitution in 2004.

Sissel Trygstad is a  sociologist and head of research at Fafo, Institute for Labour and Social research in Oslo, Norway. She has been working with questions related to free speech and whistleblowing in Norwegian working life in a decade.

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford.

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