Whistleblowing is a contentious topic at the moment: Whistleblowers are to be protected from retaliation by an EU directive if they expose wrongdoings. Both in-house and external contact points are intended to enable whistleblowers to report wrongdoings. The EU passed the Directive on the Protection of Persons Who Report Breaches of Union Law in October 2019. The Member States have two years to implement the directive. In Germany, a bill is currently being drafted for this purpose.
A recent ruling by the European Court of Human Rights (ECtHR) of February 16, 2021 shows that whistleblowers must nevertheless be cautious and provide good evidence for their suspicions – 23922/19. The ECHR has found that the right to freedom of expression under Article 10 of the European Convention on Human Rights may be limited if the accusations have not been thoroughly investigated. In the present case, this led to a doctor’s termination without notice being declared lawful.
Report to the Public Prosecution Office
The case specifically involved a German doctor who had most recently been employed as deputy Chief Medical Officer at a clinic in Liechtenstein. He had noticed that the number of cases in which patients died after having been prescribed morphine was growing. He suspected active euthanasia in these cases. Without first having sought clarification internally, he reported the acting Chief Medical Officer to the Liechtenstein public prosecution office.
Investigations found that the suspicion of voluntary euthanasia was unfounded. The public prosecution office closed its investigation. An investigation against the doctor for false suspicion was also closed. However, his employment contract was nonetheless terminated without notice by the clinic.
Doctor takes case all the way to the ECtHR
The doctor fought the termination and took the case all the way to the European Court of Human Rights. He felt he had been violated in his right to freedom of expression.
The ECHR found the termination to be lawful. The doctor had reported the suspicion of a serious crime by his Chief Medical Officer directly to the public prosecution without first thoroughly examining the evidence for the suspicion of a serious crime. Furthermore, he had not ensured that his information was correct and reliable. This had had a significant impact on the clinic’s and the Chief Medical Officer’s reputation. Therefore, the termination was proportionate, the court said.
Infringement of Freedom of Expression Proportionate
Furthermore, the infringement of the doctor’s freedom of expression was proportionate. Although the doctor did not have any dishonest motives, he could have examined these serious accusations more closely and more carefully internally and had failed to do so.
The ECtHR examines the protection of whistleblowers according to a 6-point scheme. In doing so, it assumes that whistleblowers must first seek an internal remedy for the wrongdoing. The disclosure of information to third parties should only be permissible as a last resort. It has yet to be seen whether a similar ruling would have been made in Germany after implementation of the EU requirements. In any case, whistleblowers need to investigate their suspicions thoroughly and be clear about one thing: unfounded suspicions can mean the end of the employment relationship.