What is Whistleblowing?
Whistleblowing is the act of disclosing information that can be considered illegal, immoral, or unethical actions within organizations. The whistleblower is usually an employee who has directly or indirectly observed such behaviors and therefore fears ethical or legal consequences for the company or organization. This can also be accompanied by a loss of revenue. Without a corresponding report, the violation usually does not stop, so disclosure is necessary from a societal interest. The whistleblower can submit a report to an internal or external reporting office. The Whistleblower Protection Act includes a choice for the whistleblower between the two channels.
Uncovering grievances – Heroism or Denunciation?
The societal relationship to whistleblowers is ambivalent. Do you know Miroslav Strecker? He uncovered the “rotten meat scandal” in 2007 and was honored for it by then Agriculture Minister Horst Seehofer MdB a.D. (CSU) – however, at his workplace, he became a victim of harassment until he was eventually dismissed. No one wants to eat rotten meat, yet such a report in the work environment feels like a threat to one’s own job. Whether a whistleblower is seen as a hero or a snitch, therefore, depends on the perspective of the affected parties. Violations can often only be uncovered by a whistleblower because they are often the only one who knows about it. In many minds, it is ingrained that the whistleblower is unjustly “blowing the whistle” on his employer. According to employment law relationships, employees are obligated to be loyal and considerate towards employers. However, it is important that every situation is viewed differently: Even for the employer, whistleblowers within their own company are valuable. In most cases, the company management is legally responsible for any misconduct that occurs in the company. However, management often does not know about the misdevelopments. The result is damage to reputation and possible loss of sales due to publications, even for them personally. For this reason, it is important that a whistleblower is given the opportunity to report a grievance internally, which can be reacted to internally at the earliest possible point in time.
When should a report be made?
A whistleblower is protected from discriminatory or employment law retaliations as soon as he had sufficient reason to believe that the reported information about violations were true at the time of the report, Art. 6 para. 1 lit. a WBRL. What does this mean specifically for the whistleblower? When is he or she acting in good faith? It is unclear what the whistleblower’s duty of investigation is. The duty of investigation can only affect the potentially whistleblowing person within the bounds of legality and must not be subject to high requirements in order not to undermine the main objective – the effective enforcement of the law and a strengthening of the individual protection of whistleblowers. As a consequence, this means that a potentially whistleblowing person must gather all available information up to the point where he would violate a foreign legal sphere (e.g., § 202 StGB) or confidentiality interests (e.g., § 4 GeschGehG).
Which grievances may I expose by reporting them?
The type of grievances that fall under the HinSchG is answered by the “subject matter scope”, cf. § 2 HinSchG. The most important grievances are:
Violations that fall under criminal law, such as theft, corruption, or sexual harassment Regulatory offenses, such as provisions of the Occupational Safety and Health Act or the Minimum Wage Act Violations against labor law Violations that fall under data protection Violations against environmental regulations
What is the advantage of outsourcing the reporting office to an external service provider?
If your employer has outsourced the reporting office to an external partner, the central advantage for you is that you can be absolutely sure that your report will be treated confidentially. An external service provider is never in a conflict of interest with your colleagues or the managers in your company. This advantage is reinforced when your employer outsources the reporting office to lawyers, as they are legally obligated to maintain confidentiality. They can legally classify reported misconduct and directly give the whistleblower an assessment of whether they meet the conditions for protection by the HinSchG. Through targeted inquiries, the case is prepared in such a way that your employer can act directly.
What are the consequences of reporting grievances?
As long as the conditions are met, the whistleblower does not have to fear reprisals. Reprisals are actions or omissions in connection with professional activity that are a reaction to a report or a disclosure and cause or may cause unjustified disadvantage to the whistleblower. Examples of reprisals are termination or mobbing. Moreover, the HinSchG has incorporated a shift in the burden of proof. This means that in court, the employer must prove that employment law reprisals are not directly related to a whistleblower report. In addition, the whistleblower often has the option of making an anonymous report. Although there is no obligation for companies to enable anonymous reporting, anonymous reports should also be processed. Whistleblowers, however, have the option of making a report under a pseudonym such as “John Doe” and thus continue to remain quasi-anonymous. Furthermore, the obligation of confidentiality also protects the whistleblower.
Conclusion
Overall, a societal rethink regarding whistleblowing is taking place, so that the legislative initiatives at the European and German level were majority-capable at all. The introduction of the EU-WBRL and the HinSchG will create long and medium-term trust in the economy and administration – to which whistleblowers actively contribute. An open approach to the topic in the company and corresponding training for employees should now be on the agenda of employers so that in the future a trustful approach to the topic of whistleblowing can be found and all sides can benefit from reporting.
As of: June 4, 2023