Hero or traitor? What is a whistleblower?

A few years ago the phenomenon of whistleblowing aroused worldwide interest for the first time: In 2013, former CIA and NSA employee Edward Snowden handed over countless secret documents to the Hong Kong press. In doing so, he made public the surveillance of global Internet traffic by programs of British and American secret services. The NSA affair was one of the consequences of his revelations.  Snowden now lives in Russia with an uncertain future. Three years later, his life story served as the basis for a German-American feature film (“Snowden”).

Hero or traitor?

While some people celebrate the famous whistleblower as a hero, others despise him as a traitor and nest-polluter. However, only few have a sound knowledge of the content of whistleblowing and the possible consequences.

Whistleblowing/ Unsplash.com/ Javardh

Whistleblowing comes from the English expression ” to blow the whistle” and means “to blow the whistle on someone” or “to sound the alarm”. As an employee, a whistleblower informs the police, a supervisory authority or the public about irregularities in companies or authorities. This can be violations of the law, corruption, dangers or unethical behaviour. If the public is involved, this is referred to as external whistleblowing. This poses major problems for personnel, but above all for the whistleblower himself: After all, it is not always permissible under labor and criminal law to disclose internal grievances to external parties. Rather, each case requires a separate assessment, as there is no generally applicable law on whistleblowing in Germany to date. A legislative initiative launched by the SPD and the Greens a few years ago to protect external whistleblowers has got stuck in the political mills.

In principle, employees are obliged to their employer to maintain confidentiality, consideration and internal clarification of grievances. There are exceptions if a law expressly requires external information, for example in the case of serious or long-standing criminal offences, offences committed by management or with the future involvement of the employee. Whistleblowing is also permitted if a law grants the employee the right to contact the authorities after an unsuccessful internal report due to insufficient measures to ensure health and safety. However, in the absence of such cases, the whistleblower often has to bear considerable consequences, of which exclusion, transfer or bullying are the lesser of the two evils. It is not uncommon for the employer to additionally attempt to terminate the employment relationship by giving ordinary notice or even extraordinary termination or termination without notice, thus getting rid of the unpleasant employee.

Such a dismissal is successful in any case if the whistleblower knowingly filed a false criminal complaint or if he filed an unfounded complaint with the intention of causing damage. Whether the whistleblower prevails in dismissal protection proceedings even if he has filed a criminal complaint in good faith, depends on the competent labor court whether he can prove that he has previously made sufficient efforts to find internal remedies and that the subsequent criminal complaint does not contain any recklessly false information. If he can provide the relevant evidence, the dismissal is unlawful and the employer has lost the case. If not, the employee is no longer employed. In this case, he or she may face additional claims for damages, which the company can assert against him or her under civil law. To do this, however, the employer must clearly explain the damage and the connection between the breach of duty and the damage.

German jurisdiction

There is no uniform jurisdiction in Germany. So far, the tendency has been towards employer-friendly decisions. The fact that in 2011 the European Court of Human Rights in a decision awarded the plaintiff, who as a nurse for the elderly had uncovered abuses in a nursing home for the elderly, a substantial amount of damages for pain and suffering because her whistleblowing did not justify dismissal, did not change anything about this. This is not a decision of principle, but an individual case decision (proceedings Heinisch v. Federal Republic of Germany No. 28274/08). The legislator has not yet taken this decision as an opportunity to create a law that provides legal certainty for whistleblowers and companies in the area of whistleblowing. As long as such a law does not exist and the respective prospects of success of a whistleblower who takes legal action against dismissal before the labour court in the event of his dismissal are uncertain, it must be clear to anyone who thinks about exposing grievances at his employer that he is risking his job. And this also in the long term, because the employer can also later try to get rid of the employee with an advanced dismissal for operational reasons.

In June 2016, the European Commission issued a directive (Trade Secrets Directive 2016/943) which provides for better protection of whistleblowers in the future. As of today (August 2018), it has not yet been transposed into German law, as a corresponding law for the protection of trade secrets is still in the draft stage.

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As employment law cases should be solved quickly, we always have an initial consultation appointment immediately. If possible on the same day, otherwise the next day. Please write us a message or call us directly. You can reach us by phone from Mo-Fr in the time from 8 am to 6pm.

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Termination because of Corona – What to do?Duration of entitlement to unemployment benefit/ Unsplash.com

The coronavirus has a strong impact on the entire working environment. We are currently receiving numerous inquiries on this topic every day and we notice that there is a lot of uncertainty.

⏩ On this page we have summarised the most important questions on the subject of termination due to corona.

⏩ In addition, we have collected the most frequently asked questions for employees, employers and works councils on labour law and Corona and published the corresponding answers in a separate section.

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Remember that!

As employment law cases should be solved quickly, we always have an initial consultation appointment immediately. If possible on the same day, otherwise the next day. Please write us a message or call us directly. You can reach us by phone from Mo-Fr in the time from 8 am to 6pm.