On December 16, 2022, the Bundestag passed the Whistleblower Protection Act (“HinSchG”). Due to the European Court of Justice’s (“ECJ”) Whistleblower Directive of December 16, 2019, the German legislator was obliged to implement the Directive by December 17, 2021.
With a one-year delay, the law was passed by the Bundestag last Friday. It must now pass the Bundesrat and is expected to come into force in March 2023.
Employees in companies and public authorities who report malpractices or criminal offenses such as corruption, insider trading, human rights violations, violations of the German Equal Treatment Act, etc. should not experience any disadvantages due to their reporting and thus should not be discouraged from reporting.
On December 14, 2022, the bill was supplemented in the legal committee of the Bundestag under the impression of the "Reichsbürger" problem to the effect that the protection of the law also applies if the reports refer to the constitutional loyalty of officials.
What do companies need to do now?
- Companies with generally 250 employees or more must establish an internal reporting channel through which their employees can file any reports.
- Employers with generally 50 up to 249 employees will belong to the group of obligated parties only from December 17, 2023
- In group companies, internal reporting channels may be established for the group companies centrally at the parent company.
- Employers must provide employees with clear and easily accessible information on how to use the available reporting channels.
- In order to prevent employees from using the external reporting office at the Federal Office of Justice, the employer should create incentives to use the internal reporting channels. This can be done by providing unproblematic and confidence-inspiring measures.
- Employers must treat anonymous and non-anonymous reports equally. Anonymous reports must also be processed quickly. This was not the case in the first draft of the law; non-anonymous reports were to be processed with priority.
The whistleblowers must not suffer any disadvantages under employment law as a result of their report. Warnings, dismissals, denial of promotion, bullying, etc. are prohibited. Instead, the employer is obligated to compensate any non-pecuniary damages if the whistleblower suffers disadvantages from the employer due to the report.
Please consider carefully which solution is best suited for your company. Either you set up the reporting channel directly in the company, decide on a digital solution or on an external ombudsman/ombudswoman to whom any grievances will be reported. We will be happy to support you in this matter.