On December 16, 2022, the German Bundestag passed the so-called Whistleblower Protection Act in implementation of the EU Whistleblower Directive (EU 2019/1937) Whistleblower Protection Act, which aims to provide better protection for people who, in the course of their professional activities, have obtained information about misconduct or violations and want to report it. It is expected that the bill will also pass the Bundesrat (Federal Council) in January 2023 and will then be promulgated.
Accordingly, private and public employers with at least 50 employees as a rule must set up and operate an internal reporting office that employees can turn to (Section 12 (1) and (2) HinSchG). Private employers with 50 to 249 employees usually receive a grace period from the legislature and do not have to set up the internal reporting offices until December 17, 2023, § 42 HinSchG. However, this also means that private employers with 250 or more employees as a rule must act immediately and set up and operate an internal reporting office upon promulgation of the law. Those who fail to do so are in breach of regulations and face a fine of up to €20,000, § 40 (2) no. 2 in conjunction with (2) HinSchG.
However, the internal reporting office does not necessarily have to be staffed by a person employed by the employer. Pursuant to § 14 (1) HinSchG, the employer may also entrust a third party (e.g. a law firm) with the tasks of the internal reporting office. We already offer this service to our clients.
Several private employers with 50 to 249 employees can set up a joint office to receive reports, which may be particularly relevant for corporations.
The established reporting offices must protect the identity of the person providing the information, the person who is the subject of the report and any other persons named in the report, § 8 HinSchG. In addition, the reporting channels must be designed in such a way that only the persons responsible for receiving and processing the reports and those assisting them in fulfilling their tasks have access to the incoming reports, § 16 para. 2 HinSchG. The internal reporting channel must allow reports to be made orally (including by telephone), in text form or, at the request of the whistleblower, in person; Section 16 (2) HinSchG.
Reprisals or the threat of reprisals against whistleblowers are prohibited, § 36 (1) HinSchG. Section 36 (2) HinSchG also contains a reversal of the burden of proof, according to which it is presumed that the disadvantage is a prohibited reprisal if a person providing information suffers a disadvantage in connection with their professional activity after reporting or disclosing.
Employers must therefore act and set up an internal reporting channel.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.