There is no specific legislation on whistleblowing generally despite recent attention on this topic. Attempts to introduce statutory provisions have failed in the past as a result of objections from employer associations and the only specific statutory reference relates to health and safety offences. A draft bill on the protection of whistleblowers brought into the German federal parliament by opposition parties in 2015 was overruled. Following the EU Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure there should have been an implementation into law however, the draft law of the government implementing the directive was only published on 18 June 2018. This draft law on the protection of business secrets has yet to be adopted in the legislative procedure. Until then, the Directive could be, in certain cases, be utilised directly.
As long as the legal situation remains unchanged, there is a lack of clarity around the procedure that whistleblowers should follow and any protection that might be available to them. With no general statutory protection, any potential protection that a whistleblower might have arises from general employment obligations such as protection against dismissal and the right not to be subject to disciplinary action for having exercised a lawful right. Case law which has considered the dismissal of whistleblowers does not offer much comfort for those who want to make a disclosure.
Who is protected?
Protection against dismissal and the right not to be subject to disciplinary action for having exercised a lawful right applies to workers interns and trainees.
Which disclosures are covered?
The only form of disclosure which is expressly regulated by statute is a disclosure relating to dangers for the health or security of employees. An individual cannot be subject to a detriment if he/she has brought a potential danger to the health or safety of employees to the attention of an external organisation.
The employee must notify the employer in the first instance if an internal remedy is possible. If, however, it would be unreasonable for the employee to notify the employer in the first instance, the whistleblower can make a complaint straight to the competent authorities. Notifying the employer first would be unreasonable if:
- it was a serious criminal offence
- the employer or a representative of the employer is the offender
- the employer asked the employee to commit an unlawful act or an indictable offence, or
- the whistleblower would be liable by failing to notify the external institution.
Notifying a competent authority would also be reasonable if the employer has been informed but has taken no action.
Outside of these two specific areas, there is no specification of disclosures that can be made and an individual who makes a disclosure runs the risk of having their employment terminated. Under general principles:
- it is generally unlawful for an individual to knowingly or negligently make a false accusation, and
- disclosures should not be made with the sole intention of causing damage.
Procedure for making a disclosure
As a general rule, a disclosure in relation to a workplace matter should be made to the employer in the first instance. Disclosure to a competent authority is allowed if a disclosure has been made to the employer and the employer has not taken any action. Public disclosure is only permitted if every other available route has been exhausted.
It is not possible to agree with individuals (in advance) that they will not make a legitimate disclosure. Any term of agreement between a worker and his/her employer is void in so far as it purports to preclude the worker from making a permitted disclosure.
Whistleblowers are not generally paid for making disclosures. If a whistleblower receives payment for making a disclosure this could undermine their credibility. However, it would be legally permissible to pay whistleblowers.
The right not to be subject to disciplinary action for exercising a lawful right means that an individual should not be subject to a detriment if he/she has made a permitted disclosure following the procedure set out above.
There are no specific remedies that apply to whistleblowing cases. The normal principles will apply and the actual remedy will depend upon the action taken by the employer which has been challenged (eg if the individual has been dismissed or subject to a detriment after having made a legitimate disclosure).
There is no legal requirement for an organisation to have a whistleblowing policy.
Employers should consider whether it is appropriate to introduce a policy for the disclosure of information. A whistleblowing policy might include a “letterbox” for whistleblowers or a “whistleblowing hotline”. The introduction of a whistleblowing policy is subject to the co-determination right of the works council.
A whistleblower who makes a disclosure to an external organisation could, potentially, be committing a criminal offence as revealing company secrets can constitute a criminal offence.
Further details on whistleblowing in Germany are available here.
Reviewed August 2018
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.