Although we saw a legislative initiative to introduce a whistleblowing act in 2011 and despite numerous revelations in the food sector and the NSA scandal in 2013, there is still no general law on the protection of whistleblowers in Germany.
Few explicit statutory whistleblowing rights and duties
Whistleblowing is lawful where statutory provisions give an employee the right (or impose a corresponding duty on the employee) to “blow the whistle”. However, there are only a few laws that explicitly stipulate reporting rights or duties for specific situations, such as
- the German Data Protection Act (Bundesdatenschutzgesetz – BDSG) allowing the data protection officer to report possible violations of the data protection rules to the authorities;
- the German Labour Protection Act (Arbeitsschutzgesetz – ArbSchG) which allows employees to report possible threats of safety and health protection to the authorities if an employer has not remedied previous internal complaints;
- the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) providing for the employees’ right to report possible discrimination to their employers and/or the Federal Anti-Discrimination Agency; and
- the German Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) allowing employees to complain about unfair treatment to their employers and/or the works council.
Other whistleblowing rights or duties
Apart from the above situations, whether whistleblowing is lawful or not depends on the circumstances of each individual case.
Whistleblowing is lawful where the employee complies with a duty under his/her employment contract to report any mistakes or wrongdoings relating to his/her responsibilities. Without an explicit contractual reporting obligation, employees are not obliged to report such mistakes or wrongdoings to their employers. To a certain extent, however, there may be a particular obligation for employees with a controlling function: if damage has occurred in the employee’s area of responsibility and there is a risk that similar damage might occur again in the future; or in the case of threatened personal injury or other material damage. In general, an employee is not obliged to report such mistakes or wrongdoings created by him/herself.
Whistleblowing is also lawful if the employer establishes certain reporting structures and the employee uses them appropriately. For example, according to the German Banking Act (Kreditwesengesetz – KWG) financial institutions must provide for a proper business organization including a process which allows employees to report to an appropriate body within the company, any violations of the Regulation (EU) no. 575/2013, violations of the German Banking Act or any statutory orders issued in connection therewith, and criminal offences. Employees using these processes are acting lawfully.
In other instances, German case law usually assesses the various interests of the parties involved in order to determine whether the whistleblowing was lawful or not. German labour courts take several factors into account, e.g. the employee’s freedom of opinion, the employee’s obligation of loyalty, the public interest in being informed, and the company’s right to protect its reputation. Generally speaking, employees are obliged to report possible misconduct internally first and may disclose the alleged irregularities to a third party only if the employer has not found a remedy. However, in specific situations, e.g. in the case of a criminal offence or if non-reporting is itself a criminal offence, third parties (such as responsible authorities) may be contacted directly. Wilful reporting of false information or reporting with the sole aim of harming the employer is always unlawful.
Protection against dismissal and discrimination
Where an employee decides to “blow the whistle” lawfully, he/she is protected against disciplinary action and discrimination. In particular, a notice of termination given on such basis would be invalid. Further, disciplinary action or discrimination imposed as a punishment for lawful whistleblowing may entitle the employee to financial compensation.