Protection against reprisals under the HinSchG
Section 36 of the HinSchG provides for the protection of whistleblowers against reprisals under labor law as an essential part of the protection of whistleblowers. Reprisals include unjustified discriminatory actions or omissions, such as
- Termination of an employment relationship
- Premature termination of a contract for work or freelance contract
- Warning of an employee
- Disciplinary measures
- Damage to reputation
- Causing financial losses
These reprisals are expressly prohibited. The prohibition also applies to the threat and attempt of such measures, regardless of who takes them. Legal transactions and sanctions under employment law that violate the prohibition of reprisals are also null and void within the meaning of Section 134 BGB. Violations of this prohibition constitute an administrative offense and can be sanctioned with substantial fines.
Reversal of the burden of proof in favor of whistleblowers
In order to ensure protection against reprisals, Section 36 (2) of the HinSchG provides for a reversal of the burden of proof in favor of whistleblowers. This means that if the reversal of the burden of proof applies, the causal link between the report or disclosure and the reprisal as well as the unjustified disadvantage is presumed. The Lower Saxony Higher Labor Court ruled that these protective mechanisms only apply if the whistleblower can provide sufficiently substantiated evidence and, if necessary, prove that the reported violation falls within the material scope of the HinSchG.
Requirements for protection against reprisals
The ruling emphasizes that the protection of whistleblowers is only effective if the whistleblower can provide sufficiently substantiated evidence that the reported violation falls within the material scope of the HinSchG. This means that the whistleblower must specifically demonstrate that the discrimination was suffered as a result of a report or disclosure under the HinSchG.
