German Whistleblower Act

The German Whistleblower Act (das Hinweisgeberschutzgesetz), which transposes the EU directive into German law, entered into force on 2 July 2023. 

The act regulates the protection of persons who become aware of breaches in the course of their professional activities and report that. These persons include, without limitation, employees, former employees, job candidates and the self-employed. The act also establishes whistleblower protection mechanisms by prohibiting retaliation against them in the form of, e.g. workplace bullying, disciplinary actions or hindering promotion within the organisation. 

Before the act entered into force, whistleblower protection in Germany had been shaped mainly by the case law. However, such protection was insufficient and whistleblowers often experienced retaliation in broad sense for violations or abuses they reported. On the one hand, the Whistleblower Act gives whistleblowers a clear protection status against retaliation for reporting a violation. On the other hand, the law contains also provisions that enable employers to deal with abusive reports when they turn out to be untrue.

The German statutes protects whistleblowers not only in the case of reporting breaches of EU law, but also when reporting violations of national laws, among others, of German criminal law, or violations punishable with a fine (provided that the violated norm serves to protect life, health or rights of employees or their representative bodies. This includes, e.g. OHS regulations and the minimum wage act).

 

The reporting channels used by employers should be able to process reports of breaches made in writing or orally. These can be e.g. both IT systems and dedicated hotlines. Either form must ensure confidentiality, i.e. the channels should ensure that the identity of the whistleblowers and the persons covered by the report remains unknown to third parties.

When it comes to implementation, the new act stipulates that organisations hiring at least 250 employees must do it immediately as the new regulations apply to them as soon as the act enters into force. Those hiring 50 to 249 employees have time until 17 December 2023.