The German Whistleblower Protection Act summarised:
Companies and organisations with 50 or more employees are obliged to establish and operate whistleblowing systems. However, employers with between 50 and 249 employees, an implementation period until the 17th December 2023 is given. Employers with 250 and more employees will have to implement such system already until 2 July 2023.
Whistleblowers must be given the opportunity to provide information orally, in writing or in person. Anonymous indications should also be followed up, even if there is no legal obligation to do so.
Whistleblowers should prefer to report to an internal reporting office if “effective internal action can be taken against the violation” and there is no fear of reprisals.
Information about violations only falls within the scope of the act if it relates to the employer or another entity with which the whistleblower had professional contact.
Subsequently, the internally established reporting office must acknowledge receipt of the indication within 7 days and after 3 months also inform the whistleblower about the measures taken.
In addition, external reporting offices are set up by the Federal Office of Justice and, if necessary, also by the Federal States, to which the whistleblower can also turn despite the preference given to the internal reporting office in the law.
The fine range for violations of the obligations arising from the Act is up to EUR 50,000.00.
Co-determination in the introduction of the whistleblower system
The implementation of whistleblower system and the establishment of internal reporting offices in companies with a works council is subject to co-determination. Correspondingly, appropriate works agreements must be negotiated and concluded in a timely manner with regards to the co-determined contents.
Companies should become aware of the requirements of the HinSchG as soon as possible. Companies with 250 employees or more should have implemented these latest by 2 July 2023. Smaller companies must also tackle the implementation up to the 17th of December 2023, especially if co-determination intervenes and the works council is to be involved.
With regard to possible liability risks, internal reporting offices should be set up immediately, embedded in a corresponding compliance management system. In companies with works councils, works agreements must be concluded before the introduction of internal reporting offices and time for negotiations with the works council must be reserved.
Companies must document personnel decisions that affect whistleblowers and the considerations behind them. If the whistleblower invokes an alleged disadvantage due to a previously issued indication, the company must be able to prove that the decision is not an impermissible sanction against the whistleblower. This will play a role, for example, in promotion decisions or in case limited employment contracts are not extended.