What is the Whistleblower Protection Act?
With the new law, an EU directive to protect workers has been implemented — once again. Specifically, the “Act for Better Protection of Reporting Persons and the Implementation of the Directive on the Protection of Persons Who Report Violations of Union Law” is about whistleblowers, i.e. employees of companies or authorities who want to publish internal information (for example on corruption, fraud or other crimes). According to the law, they should be offered a point of contact through which they can point out grievances — anonymously or using their real name, within the company or even externally (for example via the Federal Office of Justice). For the public sector, the law has also been extended to include a lack of constitutional compliance on the part of employees — even though no specific crimes have been committed (yet).
The introduction of an internal reporting system is phased in accordance with company size: Initially, the law only applies to companies with 250 or more employees from its entry into force (July 2, 2023). Companies with a minimum of 50 employees, on the other hand, are only required to set up internal reporting offices and also process anonymous reports of legal violations from December 17, 2023.
Anonymous whistleblowing in companies: How is that supposed to work?
In some companies, there have been anonymous “grief boxes” for decades, in which employees can contact Human Resources, a works council or their team management confidentially and anonymously upon request. In accordance with the Whistleblower Protection Act, this mailbox will not be sufficient.
But: You are not required to take special (technical) precautions so that your employees can also report anonymously. It simply requires that you process incoming reports anonymously just as carefully as non-anonymous ones.
What is in store for employers now?
In particular, the short term with which the Whistleblower Act comes into force is likely to be a challenge for many companies. From July 2, 2023, they must offer and publicize a whistleblowing system in their company.
If a whistleblower fears that he will be disadvantaged in the workplace because he has (non-anonymously) pointed out maladministration, there is also a reversal of the burden of proof if he claims that he has suffered discrimination in connection with his professional activity as a result of this report. What does that mean? As soon as the employee claims that he has been disadvantaged as a result of the report, the employer must prove that the disadvantage is not related to this.
However, the sanctions were reduced in the parliamentary legislative process: As part of this revision of the original draft law (the Whistleblower Protection Act was supposed to come into force as early as 2021), the maximum fines were reduced from 100,000 euros to 50,000 euros.
Would you like expert support?
We are happy to answer all your questions about the Whistleblower Protection Act and employment law in general. We advise you on the introduction of an internal reporting office, its legal requirements and show you your options as an employer in dealing with the internal reporting office, whistleblowers, authorities and internal investigations.
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