Whistleblowers in German workplaces run the risk that their efforts to comply with reporting laws will be “rewarded” with immediate dismissal. To date, no law comprehensively protects whistleblowers, so courts decide retaliation claims on a case-by-case basis. Nevertheless, some principles of what workers should do and what they should not do can be deduced from such cases.
COVID-19 Has Spotlighted Whistleblower Retaliation Situations
During the pandemic, there have been more cases where companies and employees have not respected strict safety rules and necessary hygiene guidelines. In one situation involving a German slaughterhouse, an employee recorded a video about the unsustainable conditions in the company canteen that endangered workers and exposed them to the coronavirus. After sharing the video online, the company dismissed the employee without notice.
From a public policy perspective, whistleblowers play an important role. Like the state, the public has a legitimate interest in knowing about unlawful practices and seeing that the illegal or unethical behaviour is remedied. At the same time, employers expect loyalty from their employees, hopefully encouraging them to raise issues internally and not expose the company to premature or unwarranted and considerable negative economic consequences.
An employer can quickly dismiss an employee in response to whistleblowing activity, but if the employee challenges the dismissal, the process can drag on for years, consuming financial resources and personal strength. The whistleblower may understand the risk, but does voluntarily or hastily quite their job or welcome being branded as a traitor by the employer and coworkers. These are valid reasons for laws that protect whistleblowing employees from retaliation.
German Whistleblower Laws
Despite the public policy rationale, there is no basic legal provision to protect whistleblowers in Germany. Only in specific professions or industries – the financial sector is one example – do individual regulations exists.
A German law protecting business secrets has been in force since 2019. Although it also contains regulations on whistleblower conduct (and is sometimes erroneously called the “Whistleblower Act”), the purpose of this law is to protect companies from espionage by competitors. Instead of protecting employee rights, it limits claims for damages by entrepreneurs.
The legal situation is not simple because the legislation does not define at any point what rules employees must observe if they want to disclose grievances without endangering their jobs. It is necessary to look at the case-by-case jurisprudence of the German labour courts to understand the legal uncertainty.
The Federal Labour Court always weighs the competing interests: the employer’s interest in keeping its information confidential and the employee’s interest in keeping their job after revealing company information. This encourages employees to always discuss suspicious activities or practices with their employers before disclosing the misconduct or misbehavior to the outside world. This is only fair as employers should have an opportunity to address and resolve grievances.
Therefore, an employee must always first try to clarify his or her concerns within the company. This obligation arises from within the employment relationship, which requires each party to protect the other from harm.
At the company, the employee’s superior, a manager, or a representative from the personnel department is the appropriate contact. Some organizations may already have established whistleblower reporting systems for this purpose. The employee can only involve parties outside the company if the employer fails to take notice of the reported grievance or takes no measures to remedy the issue. There is no specific time limit for how long an employee must wait for the employer to act. The more complex the investigation, the longer the employee has to wait. If a dispute arises, the court decides whether the employee has violated their duty of consideration.
Without clear internal guidance from the employer, an employee may only disclose company wrongdoing to the public or the authorities in very limited instances. Some cases have ruled the employee may disclose the information if there is a concrete danger to life and limb that cannot be averted in any other way. For example, a worker must be able to report air pollution that would threaten people’s health without having to first go through long loops within the establishment. Absent an immediate warning, public health would be at stake.
EU Protections for Whistleblowers
Germany must adopt the European Union Notice Directive by the end of 2021. The Directive establishes clear rules for the time an employee must wait for the employer to remedy a reported grievance before turning to the authorities or the public. Experts are calling for the Directive to be implemented broadly and not just on a one-to-one basis. Germany should take the opportunity to finally give whistleblower protection a comprehensive and unambiguous framework.
What Should a Whistleblower Do Before Blowing the Whistle?
Before disclosing information about an employer, potential whistleblowers should immediately seek advice from a trade union, works council, or a lawyer. Workers who first go through in-house channels can significantly reduce the risk of dismissal. Dismissal without notice is very serious – when that happens, an employee does not receive unemployment benefits and can be refused insurance for legal expenses if the dismissal is deemed proper.
Krebühl Biere Rechtsanwälte PartG mbB