The Whistleblower Protection Act was introduced throughout Europe to protect people who report legal violations within companies. This is also referred to as whistleblowing. Logically, these whistleblowers are not welcome at the companies in question. The Whistleblower Protection Act is intended to protect their rights.
The Whistleblower Protection Act was passed in 2019 and was originally intended to be implemented as national law in all EU member states by 2021. That didn’t quite work out. 24 Member States have not yet or only partially implemented the Whistleblower Protection Act. The EU is therefore calling on these countries to implement the law quickly.
Germany is one of the 24 countries that have yet to implement this requirement. The implementation provides for the following:
Reporting offices are to be set up for the reporting of legal violations in companies. These should exist both internally within the company and externally.
An important aspect of whistleblower protection is protection against discrimination. Whistleblowers are often seen in a bad light by other companies due to the information they provide about breaches.
To prevent this, employers will in future be required to provide evidence if they do not employ known whistleblowers. This burden of proof relates to providing justifiable reasons why the employment is not carried out.
The idea behind the reporting offices is that there is a direct point of contact to which employees can turn in the event of violations. Employers should create incentives for their employees to contact the internal reporting office in the first instance.
A reporting office must be set up if a company has at least 50 employees. Companies with up to 240 employees may set up joint reporting offices.
The external reporting offices are provided on the one hand by the Federal Office of Justice and on the other hand by individual specialized institutions that focus on specific economic sectors.
It is important that the hotlines adhere to the principle of confidentiality. This means that tips are followed up without publishing where these tips came from. The only exception is if the whistleblower gives written permission for their identity to be disclosed.
Information may also be submitted anonymously. Both internal and external reporting offices must also follow up on anonymous reports.
All instructions must be carefully documented. This is usually done in writing. Audio recordings are only permitted if the prior consent of the whistleblower has been obtained.
The documentation takes the form of a protocol. Whistleblowers may view this log and check it for errors. The documentation must be kept for two years.
Whistleblowers are obliged to report only actual violations. Of course, this is not always easy to check and there is a certain amount of disagreement about the duty of whistleblowers to check. In the end, there should simply be a certainty before a violation is reported. If the whistleblower is uncertain, more information should be obtained. Then you can still report the violation, because it is not time-barred.
The Whistleblower Protection Act has not yet fully entered into force in Germany. But it is only a matter of time. Affected companies will then have to deal with the establishment of reporting offices. Dealing with whistleblowers must then remain confidential and must not result in any disadvantages.
