Whistleblowers should be paid

Hero or traitor?

Opinions about “whistleblowers” ​​differ widely: for some, the whistleblowers are informers and traitors, for others they are heroes who show moral courage in order to remedy grievances. The legislature does not help much with the assessment, because a legal regulation that sets out the rights and obligations of a whistleblower does not yet exist in Germany. Experience shows, however, that the whistleblower takes great risks when uncovering grievances, which can endanger both his professional advancement and his social reputation.

What does whistleblowing mean?

The term “whistleblowing” was coined in the USA and literally means something like “blowing the pipe”. In the USA, whistleblowing has long been incorporated into various laws such as the “Whistleblower Protection Act”. In most cases, a whistleblower is therefore an employee who publishes any grievances that become known to him at his workplace. Whistleblowers in companies, in politics and also in administration ideally want to denounce and eliminate illegal actions or dangers to the lives of others or to the environment.

German case law assumes whistleblowing if the following conditions are met: The whistleblower perceives the grievance or misconduct and discovers it. For this purpose, it is sufficient if he refuses to cooperate despite an employment contract obligation, which makes the matter public. A whistleblower will then “sound the alarm”. However, he should first try to address the problem within his workplace and bring it up for discussion (so-called internal whistleblowing). It also happens that one or more hierarchy levels are skipped if, for example, a conversation with the immediate superior does not promise success. However, if the whistleblower's submissions are ignored, he turns to external bodies such as the media, trade unions or law enforcement authorities (police, public prosecutor). Even the well-founded suspicion of maladministration justifies sounding the alarm. Moral reprehensibility (e.g. company party degenerates into a drinking orgy) alone is not enough, however, as this is only an internal problem. It should be noted that, according to the definition, whistleblowing may not take place for selfish reasons, but rather the protection of general, public interests (e.g. compliance with democracy) must be in the foreground.

Employers quickly feel betrayed by their employees if they publicly address misconduct or grievances in the company. Shortly thereafter, termination without notice is often given. Although the employee must behave loyally to his boss, on the other hand, the employee is also subject to his conscience and has a right to exercise the fundamental right of freedom of expression (Article 5 of the Basic Law). A termination is therefore only effective if the employee has violated his contractual obligations.

Not every disclosure of information is automatically penalized. There are even many information obligations that affect everyone or only certain groups of people. In this case, the failure to divulge the information would be punished. For example, (future) contractual partners must point out defects in the purchased item, etc. in order not to be exposed to claims for damages. If, for example, one becomes aware of a planned robbery, then one must inform the authorities or the threatened person in good time according to § 138 StGB (Criminal Code). Failure to provide assistance in accordance with Section 323c StGB is also guilty of someone who learns of a danger but does not point it out to anyone.

But there are also regulations that explicitly criminalize the dissemination of information. If the employee does pass on the information, termination may be justified. According to Section 203 of the Criminal Code, it is forbidden to pass on secrets of others that have been entrusted to you due to your work within the framework of confidentiality (e.g. doctor or lawyer). All of this shows that the legislature has already regulated the disclosure of information in several ways and sees reporting as a way of preventing or investigating criminal offenses.

However, since there are no protective laws for whistleblowers, it is currently left to case law to decide on a case-by-case basis whether the employee's statements violate contractual obligations. The Federal Constitutional Court therefore had to deal with the subject of whistleblowing as early as 2001. As part of a public prosecutor's investigation, an employee had handed over documents to the prosecution authorities that suggested illegal behavior on the part of the employer. When the latter found out about the disclosure, he gave the employee notice without notice, as he had handed over the documents voluntarily and it was therefore no longer reasonable to maintain the employment relationship. According to the Federal Constitutional Court, the whistleblower must not suffer any civil law disadvantages such as dismissal or compensation if he fulfills his citizenship obligations and helps with investigations. This is the only way to ensure compliance with the penal laws. Nothing else applies even if the allegation of a criminal offense later does not come to fruition. Otherwise the employee would bear the risk that a termination would be lawful and that he would be liable for damages on top of that. Under such circumstances nobody would voluntarily pass on information (decision of July 2, 2001, file number 1 BvR 2049/00).

In another case, a doctor was sued by a hospital for damages for anonymously providing information about alleged quality defects and unclear deaths to law enforcement agencies and the media. This had led to a decrease in the number of patients and thus to damage amounting to millions. The State Labor Court (LAG) denied any unlawful behavior and the responsibility of the doctor. In principle, filing a criminal complaint is legally protected. This only applies if the whistleblower acted with bad faith or against his better knowledge, which would lead to compensation for a breach of contractual obligations (LAG Hamm, judgment of July 21, 2011, file number 11 Sa 2248/10).

Big Risks

The whistleblower should of course be able to substantiate his allegations with facts. Although suspicions justify disclosure of the information, untrue accusations or rumors can seriously damage the image of the company or individuals. If possible, employees who learn of criminal acts should speak to trustworthy people who may have noticed something similar. You should also not be guided by personal emotions, because predominantly selfish motives, such as revenge on the boss, are classified as immoral and therefore not counted as whistleblowing. Potential whistleblowers should always be aware that the information they give could have serious professional and personal consequences (e.g. termination, bullying).

Every company should be interested in eliminating grievances within its own ranks. Nevertheless, many employees do not dare to speak openly for fear of losing their jobs. Many companies therefore use various methods to get this information without branding the whistleblower. For example, some companies set up a telephone hotline that employees can call anonymously. However, it must be available 24 hours a day. With an internal hotline, confidentiality and anonymity must be ensured.

It is also possible to appoint external intermediaries, so-called ombudsmen. They are mostly lawyers who establish a relationship of trust with the informant and who are subject to a lawyer's obligation to maintain confidentiality. Therefore, the anonymity of the whistleblower is more likely to be preserved, because the ombudsman only passes the information on to the company's report recipient. The probability that this offer will be abused by vengeful employees is also lower than with the hotline. Because a phone call is quick, but visiting a lawyer requires more determination and courage. All parties involved should be involved as early as possible. For example, a company agreement or a regulation on the intranet can clarify whether the ombudsman should only be made aware of possible criminal offenses or also about other operational grievances. It should be clarified whether only employees of the company are allowed to address the ombudsman or also third parties who are not employees.

Many companies also use electronic whistleblowing systems: They give employees the opportunity to express themselves anonymously, for example by e-mail or fax. However, all regulations of the Federal Data Protection Act must always be complied with. In most cases, encryption procedures are used to ensure that only the persons who are authorized to receive them (e.g. the management) have access to the messages and that personal data are made unrecognizable if the whistleblower wishes to remain anonymous. But here, too, the following applies: only if the employee trusts the system will they contact you. Therefore, educational work must be carried out regularly, for example through training.

The case of a geriatric nurse who has reached the European Court of Human Rights (ECHR) is currently in the headlines. She pointed out to her employer, a state-owned company, on several occasions that the staff was overloaded and that care records were not kept correctly. Since the management rejected all allegations, they filed a criminal complaint for particularly serious fraud. When the management found out about the complaint, they dismissed the geriatric nurse without notice. Both the state labor court and the federal labor court held the termination to be effective. The ECHR, however, saw the dismissal as disproportionate and affirmed a violation of freedom of expression, regulated in Article 10 of the European Convention on Human Rights. The supervisor should always be informed first about the grievances; the geriatric nurse did this too. For them, going public was therefore the last chance to eliminate the problems. This not only caused the employer a considerable economic disadvantage, but also damaged its image. Nevertheless, the public interest in information outweighs the quality of services. In addition, dismissal without notice is the toughest possible sanction under labor law, which not only destroys the career's professional career, but also prevents other employees from uncovering grievances in their workplaces. Therefore, the right to freedom of expression takes precedence over the interests of the employer (judgment of July 21, 2011, file number 28274/08).

State of the legislation

According to the Civil Law Convention on Corruption of the Council of Europe, since 1999 the Federal Republic of Germany should ensure in national laws that whistleblowers do not suffer any disadvantages if they also report suspected corruption externally with honesty. That has not happened to this day. In 2008 there was a draft law to protect whistleblowers, which provided for a new version of Section 612a of the German Civil Code (Bürgerliches Gesetzbuch). However, this legislative initiative was hotly debated and ultimately rejected. However, the Civil Service Status Act (BeamtStG), which came into force in 2009, contains a regulation that enables the principle of confidentiality to be breached if there is a justified suspicion of corruption. In 2010 the Parliamentary Assembly of the Council of Europe and the G-20 called for better protection for whistleblowers, above all in order to prevent corruption.

Author: Sandra Voigt, is an assessor and editor at anwalt.de services AG in Nuremberg.