There are enough scandals in the economy and politics. Some of them could have perhaps been avoided and wrongdoings could have been revealed if they had been reported at an early stage. However, , many people withhold their information out of fear of retaliation. This is supposed to now change. Whistleblowers are intended to be better protected within the European Union.
A corresponding EU directive on this subject dated October 23, 2019 has already come into force. The EU Member States now have time until December 17, 2021 to implement the directive into national law. The draft Whistleblower Protection Act by the Federal Minister of Justice even goes beyond the EU requirements. The Minister does not only want to protect whistleblowers who report violations of EU law, but also whistleblowers who disclose violations of German law. Within the government, the draft is controversial and for some people goes too far. Whether it will be implemented in its current form remains open.
Uniform Protection of Whistleblowers in the EU
The EU directive specifies uniform standards for the protection of whistleblowers within the European Union. According to the directive, companies with over 50 employees are required to set up secure reporting channels through which whistleblowers can report wrongdoings without fear of retaliation.
It is recommended that whistleblowers use internal company operational channels first before turning to external administrative reporting offices. Although this is only a recommendation. Of course, protection must also be ensured in cases where the whistleblower reports immediately to an official reporting office and does not turn to somebody within the company first.
By implementing these precautionary measures, whistleblowers are to be protected against retaliatory measures such as intimidation or loss of employment.
Draft of Directive on Whistleblower Protection Proposed
In Germany, the draft Whistleblower Protection Act has yet to be decided on. Whistleblowers are intended to be better protected and retaliation against them is to be forbidden. In this context, a reversal of the burden of proof is intended. In the event of a termination, for example, this means that it is not the whistleblower who has to prove that he lost his job because he provided information on wrongdoings, but it is the employer’s responsibility to show that the termination has nothing to do with the whistleblowing.
The extensive protection is intended to apply to both employees of private companies as well as to public sector employees and civil servants. However, they are encouraged to use the designated reporting offices for their reports. Anyone who goes straight to the public, e.g. via social media, risks not being covered by whistleblower protection.
Doctor Loses His Job Because of Whistleblowing
A case from Liechtenstein shows that whistleblowers can incur significant consequences in the absence of an appropriate protection law.
In this case, the European Court of Human Rights (ECtHR) decided in a judgment dated February 16, 2021, that the extraordinary dismissal of a deputy chief physician of a clinic in Liechtenstein was substantiated. Due to an increase in the number of deaths following morphine administration, the German physician had suspected active euthanasia at the clinic. He reported the chief physician to the office of the public prosecutor in Liechtenstein without first having sought internal clarification.
The investigation showed that the suspicions were unfounded. The doctor was dismissed without notice. The ECtHR found the dismissal justified because the doctor had reported the severe suspicion without investigating the allegations more closely internally.
If the case had occurred in an EU Member State rather than in Liechtenstein member state, the doctor would probably not have lost his job after his report.
It is still unclear to what extent whistleblowers will be protected in Germany. There are many indications to suggest that German whistleblower protection will be stronger than required by the EU. What is certain is that the EU directive has to be implemented by the end of the year. A Directive on Whistleblower Protection is coming. Employers are advised to use the time to establish reliable and secure reporting channels.