Whistleblowing

The most fundamental part of the protection is the prohibition of retaliation against the whistleblower. Therefore, the reporting or disclosing of information may not result in unjustified disadvantages such as disciplinary measures, dismissal or other discrimination against the person providing the information. In Addition, the Whistleblower Protection Act still contains a reversal of the burden of proof if the whistleblower suffers a disadvantage in connection with their professional activities. However, it is presumed that the disadvantage is a reprisal for the tip-off only if the whistleblower also asserts this themself. It should be noted, however, that the reversal of the burden of proof in favour of the whistleblower will only apply in labour court disputes and not in fining proceedings.

Furthermore, the Whistleblower Protection Act contains an exclusion of responsibility. Thus, a whistleblower cannot be made legally responsible for obtaining or accessing information that he or she has reported or disclosed, unless the obtaining or accessing of the information and the procurement or access as such constitutes an independent criminal offence (section 35 (1) HinSchG). In addition, a whistleblower does not violate any disclosure restrictions and may not be held legally responsible for the disclosure of information made in a report or disclosure if he or she had reasonable cause to believe that the disclosure of the information was necessary to detect a violation.

The scope of protection is regulated in sections 35 and 36 of the Law. Specifically, to be eligible for protection, an individual must report an action or omission that falls under section 2 of the Law (content already mentioned), provided:

• they have reasonable grounds to believe the information is true, even if they do not provide conclusive evidence, and that said information falls within the scope of application of the Law; and
• they have obtained that information according to the conditions contained in the Law.

In certain cases, protection must be denied when, for example, the information provided is not relevant, is mere rumour or is already available to the public.

As per the protection granted by the Law, any act constituting retaliation or threat or attempt of retaliation against whistleblowers is forbidden. The acts, threats or attempts considered retaliatory will be declared null and void.

The Law defines retaliation as any acts or omissions prohibited by law, or that directly or indirectly result in disadvantageous treatment compared to another person in the employment or professional context, solely because of their status as whistleblowers, or because they have made a public disclosure, and provided that such acts or omissions occur during the investigation procedure or two years after the completion of the investigation procedure or from the date on which the public disclosure took place. An exception will be made where such an act or omission can be justified by a legitimate aim and the means of achieving that aim are necessary and appropriate.

      By way of example, the following events can be considered retaliation:

• suspension, lay-off, dismissal or equivalent measures (eg, early termination of a temporary employment contract once the probationary period has expired), or early termination or cancellation of contracts for goods or services, the imposition of disciplinary measures, a demotion or withholding of promotion and any other substantial modification of working conditions unless these measures were carried out within the regular exercise of management power;
• damage, including damage to reputation, financial loss, coercion, intimidation, harassment or ostracism;
• a negative performance assessment or employment reference;
• blacklisting or dissemination of information in a particular sectoral area that hinders or prevents access to employment or the contracting of works or services; and
• cancellation of a licence or permit;
• denial/refusal of training;
• discrimination or unfair treatment;

Apart from whistleblowers, the protection will also extend to:

• legal representatives when they are advising and supporting the whistleblower;
• natural persons who, within the organisation in which the whistleblower provides services, assist him or her in the process;
• natural persons who are related to the whistleblower and who may suffer retaliation, such as co-workers or relatives of the whistleblower; and
• legal entities for whom he or she works or with whom he or she has any other type of relationship in an employment context or in which he or she has a significant shareholding.