The most important questions and answers on the HinSchG in employment law
Barrister Mariam El-Ahmad, founding partner of Rotwang Law, answers the most important questions about the Whistleblower Protection Act (HinSchG) in this post Employment law perspective. Before founding Rotwang Law, Mariam El-Ahmad worked for one of the world's leading commercial law firms in Berlin. She advised national and international companies on all aspects of employment law and represented them in court. Mariam El-Ahmad also worked for one of Germany's leading digital law firms in consumer law, where she used Legal Tech in handling client mandates. She therefore knows the interests of employers and employees from her own experience.
Actually, the Whistleblower Directive and therefore the Whistleblower Protection Act (HinSchG) to be implemented by the end of 2021. The EU Commission has also initiated infringement proceedings against Germany due to the delayed implementation. The Federal Ministry of Justice has now Draft legislation (As of: 13 April 2022) published, which is expected to be passed in the autumn, but no later than the end of 2022.
The aim of this draft law is to provide whistleblowers with Legal certainty to provide and to protect them from reprisals. So far, whistleblower protection has been shaped solely by sporadic case law. The courts are guided by the requirements of the European Court of Human Rights (ECtHR) and weigh up between Freedom of speech and the duty of employees to Loyalty, discretion and Confidentiality among employers. A balancing act that is not always easy to manage.
The Whistleblower Protection Act picks up on the principles established by case law, aiming to provide guidance on when and how whistleblowers are protected when reporting or disclosing infringements. This places considerable obligations on companies.
Who is protected (personal scope)?
The Whistleblower Protection Act protects Natural persons, who have obtained information about breaches in connection with their professional activity or in the run-up to a professional activity and report or disclose this information to the designated reporting channels.
As suggestive persons (or also „Whistleblower„) apply not only to employees, but to everyone who has usable information „in a professional context“ have experienced. This means: also self-employed individuals or former employees. Whistleblowing will also be possible at the highest level. The new law will even make the extensive confidentiality obligations of the management boards and supervisory boards of public limited companies manageable – they too can contact the reporting offices directly with their concerns.
2. What is protected (material scope)?
To make reports „manageable“, the substantive scope of the Whistleblower Protection Act has been restricted in terms of infringements compared to the draft from the last legislative period.
The substantive scope comprises reporting and disclosure of information on breaches, which punishable by law Offences, on the other hand, are only considered reportable in certain cases. Specifically, when the regulation violated serves to protect life, limb, or health, or to protect the rights of employees or their representative bodies. The draft law also includes a longer catalogue, which Breaches of legal provisions covers specific areas. Examples include violations of regulations in the fields of environmental protection, money laundering, or product safety.
3. How are whistleblowers protected from retaliation?
Confidentiality clause
The duty of confidentiality is considered Cornerstones of an effective Protection for whistleblowers. Reporting offices must therefore maintain the confidentiality of identity. The identity may only become known to persons responsible for receiving reports or taking follow-up actions, or who assist them in fulfilling these tasks. However, the law provides for exceptions to the duty of confidentiality in some cases. For example, in criminal proceedings, if the law enforcement agency requests it.
b) Prohibition of retaliation
Retaliatory action against whistleblowers is expressly forbidden. The draft law defines retaliation as acts or omissions related to professional activity, which are a reaction to a report or disclosure, and by which the whistleblower suffers or may suffer an unfounded disadvantage. These could include anything from a missed promotion and bullying to dismissal.
c) Burden of proof reversal, claim for damages
The draft law provides for a Evidentiary privilege in favour of the informant namely in the form of a reversal of the burden of proof. If a whistleblower suffers a disadvantage in connection with their professional activity immediately after a report or disclosure, it shall be presumed that this disadvantage is retaliation. In this case, the company must prove that the disadvantage was based on sufficiently justified grounds or that it was not based on the report or disclosure. If it fails to do so, the draft law grants the whistleblower a claim for damages.
However, the draft law expressly clarifies that a violation of the prohibition of retaliation does not establish a claim to employment, vocational training, another contractual relationship, or a promotion. Claim for damages will, provided the conditions are met, in most cases be for compensation in money.
4. How are companies protected from false reports?
The draft law provides Safeguards and claims that are intended to act both preventatively and repressively against disinformation. In detail:
a) Public access only as a last resort
The whistleblower protection must not ultimately result in organisations or individuals affected by corresponding reports suffering reputational damage or even more drastic consequences from potentially unfounded accusations. A corresponding clause in the draft law therefore provides that the public may only be involved as a last resort. This is in line with case law which considers employees to be obligated to be loyal and confidential towards their employers. Before going public, the matter must be addressed from all sides. Strictly confidential be handled in order for employers to Remedy to provide.
b) No identity protection for false reports
Following a false report, those affected by the report have a legitimate interest in knowing the identity of the person who made the report. Not least, in order to To claim damages to be able to. The identity of a whistle-blower who intentionally or grossly negligently reports incorrect information about breaches shall not be protected.
c) Damages for false reporting
As already indicated in the preceding paragraph, the informant is, following a false report, Replacement of the damage liable for damages arising from the intentional or grossly negligent reporting or disclosure of incorrect information. For example, loss of earnings is conceivable.
d) Administrative offence/fine for false report
False reports are also referred to as Administrative offence has to expect a fine. A person who knowingly discloses incorrect information has to expect a fine.
5. How is the reporting procedure structured?
Whistleblowers have two equally valid reporting channels available to them, internal and external, between which they Choose freely Can.
a) Internal reporting offices
Businesses with over 50 Employees must establish internal reporting offices.The procedure for how to proceed is also laid down:
The internal Reporting office
- The person reporting acknowledges receipt of a report within seven days at the latest.
- checks if the reported violation falls within the material scope.
- maintains contact with the informant.
- checks the validity of the received report.
- If necessary, the reporting person requests further information.
- takes appropriate follow-up action as provided for by law.
- are generally not obliged to process anonymous reports.
b) External reporting bodies
External reporting offices are Whistleblowing authorities, which act as an interface between whistleblowers and state investigative authorities. Their area of competence and action arises from various regulations.
The external Reporting centres
- establish and operate reporting channels.
- verify the validity of a report and carry out the procedure.
- provide natural persons considering making a report with comprehensive and independent information and advice on existing redress mechanisms and procedures for protection against retaliation.
- are generally not obliged to process anonymous reports.
- confirm receipt of a report promptly, but no later than seven days after receipt of the report. A confirmation of receipt may be omitted, e.g. to protect the person reporting.
- check whether the reported infringement falls within the material scope and no exceptions to the scope apply.
- may, at its discretion, request information from the data subjects, from the affected company, from third parties and from authorities, insofar as this is necessary to verify the validity of the report.
- at its discretion
- contact affected companies,
- to refer the person giving the information to another responsible party
- to close proceedings for lack of evidence or for other reasons
- to forward the procedure to a competent authority for further investigation.
An employment law perspective of the HinSchG:
Many companies fear significant reputational damage and the emergence of a "whistleblower" culture due to anonymous informants. While the law may appear, at first glance, to solely protect whistleblowers, closer inspection reveals that companies also benefit from the regulations. They are informed of malpractices that company management may have been unaware of (for more on this, see the article). „Whistleblowing system as a shield“This is before whistleblowers choose publication as the supposedly only way to remedy the situation - for lack of realistic alternatives. This gives companies the opportunity early on and without reputational damage (developing) To counteract shortcomings.
Do you have any questions about implementing a whistleblowing system? Contact We'd be happy to arrange a personal consultation with one of our LegalTegrity experts.
