Germany: German Whistleblower Protection Act finally coming
The last draft of a Whistleblower Protection Act failed in February 2023 due to the lack of approval of the Federal Council. In response, the Mediation Committee was called to mediate between the Federal Council and the Federal Parliament. A compromise was found and the Federal Parliament passed a resulting draft on 11 May 2023 which was approved by the Federal Council the next day. It will enter into force on 2 July 2023.
The Act aims to enable the detection of a broad range of violations and goes beyond what is required by the EU Directive (violations of various European legal acts, e.g. provisions regarding anti-money laundering, environmental protection, animal protection, consumer protection, and data protection). In addition to criminal offences, it covers statutory offenses, if the violated provisions concern the protection of life, body or health or the protection of employee rights or the rights of their representative bodies. These provisions are e.g. occupational health and safety regulations, violations of the Minimum Wage Act or provisions of the Temporary Employment Act. Information on these violations only falls within the scope of the Whistleblower Protection Act if they relate to the employer or other entities to which the whistleblower is in a business relation.
The most extensive task for employers will be the establishment and operation of corresponding internal reporting units. This extends to employers with generally more than 50 employees as well as to employers in specific sectors such as asset management companies. For employers with usually not more than 249 employees, this obligation will not take effect until December 2023. The operation of the internal reporting unit can either be provided by employees in an independent team of the employer or by third parties, provided they have sufficient expertise especially in context of the company’s business operations. Only the persons responsible for receiving and processing the reports and the persons supporting them can have access to the incoming reports. In addition, the reporting units must allow reports in oral or text form while protecting the identity of the persons providing information, the persons concerned and other persons named in the report. Processing anonymous reports is encouraged but not required by law.
Retaliation against whistleblowers as a result of a report are prohibited. If disadvantages arise related to the professional activity of the whistleblower, there can be a reversal of the burden of proof. If the whistleblower can argue that the disadvantage is retaliation, the employer must prove that it is based on sufficiently justified reasons or that the disadvantage did not occur because of the report. In case of a violation of the prohibition of retaliation, the whistleblower can claim damages.
- When implementing an internal reporting system, the co-determination rights of the works council must be considered.
- Pusch Wahlig Workplace Law provides support on the introduction and operation of whistleblowing systems. We collaborate with providers of digital whistleblowing systems and can set up internal reporting units. We also provide in-house training and can accompany the process of introducing the whistleblower system in terms of co-determination and data protection law and provide you with the necessary documents.