Internal Reporting Office Whistleblower Protection Act (HinSchG): Everything employers and employees need to know

Obligations for employers: Internal reporting office Whistleblower Protection Act

Under the Whistleblower Protection Act, employers with at least 50 employees must set up and operate internal reporting offices. These serve as a central point of contact for employees who wish to pass on information about possible violations within the company. In addition, external reporting offices must also be designated to which whistleblowers can turn. However, it is recommended that the internal reporting office be used first if the company is in a position to clarify the violation internally and there is no fear of reprisals.

A truck driver for a logistics company observes that unmaintained vehicles are regularly used - a danger for all road users. She initially hesitates to report the irregularities for fear of consequences. However, thanks to the anonymous internal reporting office, which guarantees confidentiality, she feels protected and is able to report the incident, which leads to a quick solution and improved safety standards.

Personal scope of application of the HinSchG

The Whistleblower Protection Act not only protects employees, but also self-employed persons, suppliers and other persons who become aware of violations in a professional context and report them. It is important to note that the protection applies to all persons who are in professional contact with the employer or a related body. Individuals who are affected by a report or disclosure are also protected by the law.

Material scope of application: Which violations are covered?

The HinSchG covers a wide range of violations that can be reported. These include:

• Criminal offenses,
• Violations subject to fines that endanger the life, health or rights of employees,
• Violations of federal and state legislation and directly applicable EU legislation,
• Violations in the area of public procurement,
• Fiscal irregularities aimed at abusive tax advantages,
• Unconstitutional statements by public officials.

However, it is emphasized that private misconduct that has no professional relevance is not covered by the HinSchG.

Practical example:

An employee in a production plant notices that safety devices on machines are repeatedly not being installed properly. Despite several reports to the supervisor, the situation remains unchanged. The employee is concerned about the safety of his colleagues, but fears that he himself could be targeted by an official complaint to the management.

Solution through the HinSchG:

Thanks to the Whistleblower Protection Act, the employee can report the violation anonymously via the internal reporting office. The reporting office examines the allegations and initiates the necessary measures without revealing the identity of the whistleblower. At the same time, the law protects the employee from possible reprisals such as transfers, warnings or dismissals.

Result:

The incorrect practice is stopped, safety standards in the company are improved and the employee can be sure that their report will not be used against them. The company, in turn, avoids possible accidents, fines or damage to its image through this timely intervention.

The HinSchG gives employees the security to report grievances without fear of repercussions, and companies the chance to resolve problems internally at an early stage - a win-win situation for everyone involved.

Protection of whistleblowers: Who is protected?

A whistleblower is protected if:

• the report is made in accordance with the legal requirements,
• the whistleblower could assume at the time of reporting that the information is true,
• the reported information concerns violations that fall within the scope of the HinSchG.

It is important to note that the protection only applies if the report relates to the employer or a related entity with which the whistleblower had a professional relationship.

Prohibition of reprisals: protection against discrimination

The HinSchG prohibits any form of retaliation against whistleblowers, such as dismissals, transfers, bullying or the denial of promotions. If a whistleblower is discriminated against after reporting, the law initially assumes that the discrimination constitutes retaliation. The employer must then prove that the measure is not related to the report. However, this presumption only applies if the discrimination was actively reported.

Data protection and confidentiality

The Whistleblower Protection Act ensures that personal data may only be processed if this is necessary to fulfill the tasks of the reporting offices. All reports must be permanently retrievable and comply with confidentiality requirements. In addition, information collected via technical means such as telephone reports must be fully recorded and stored with the consent of the whistleblower. This data must be deleted no later than three years after the procedure has been completed.

Sanctions under the Whistleblower Protection Act

Compensation for damages:

Employers or responsible parties can be obliged to pay damages, for example if a whistleblower is harmed by unlawful reprisals.

Administrative offenses:

Violations of the provisions of the HinSchG, such as the failure to set up reporting offices or inadequate protection of confidentiality, can be punished with fines of up to 50,000 euros.

Criminal liability:

Particularly serious violations, such as the deliberate disclosure of confidential information, can be prosecuted under criminal law.

Co-determination of the works council

The works council has a right of co-determination in the introduction of a whistleblower system. It must be informed before such a system is set up and has an influence on the design of the procedure. This includes the question of whether the reporting office should be part of the company organization or managed externally, as well as the introduction of technical means for reporting violations. The works council must also be involved in filling positions within the reporting office.

Implementation of the Whistleblower Protection Act (HinSchG)

1. Checking the applicability of the Whistleblower Protection Act - Determine whether the Act applies to your company and whether other relevant regulations must be observed (e.g. Supply Chain Due Diligence Act).
2. Decisions on the internal reporting office Whistleblower Protection Act - Determine which reports are accepted and define response channels and responsibilities.
3. Involvement of the works council - Involve the works council in the process of implementing the whistleblowing office and communication, if one exists in the company.
4. Communication with employees - Clear and comprehensive information about the system and the conditions of use.
5. Deadline management - Ensuring that all deadlines for confirmation of receipt, feedback and deletion deadlines are observed.
6. Documentation and verification - Complete and data protection-compliant documentation of all notifications and process steps.
7. Data protection - Compliance with data protection requirements, especially when processing personal data.
8. Crisis management and crisis communication - implementation of measures to be able to react quickly to urgent cases or incorrect reports.
9. Integration into the compliance management system - integrating the reporting system into existing compliance processes and ensuring that relevant violations are detected.
10. Follow-up measures - defining which steps are initiated after a report is received and ensuring communication.

The challenges of whistleblower protection

1. Complexity of the legal requirements:
   The Whistleblower Protection Act presents companies with numerous requirements, particularly with regard to data protection, anonymity and the timely processing of reports. Many companies are unsure whether their internal processes comply with the legal requirements, which represents a considerable risk.
2. Fear of reputational damage:
   Companies fear that internal reporting systems are not sufficient to gain the trust of employees. A lack of anonymity could lead to grievances not being reported, which could damage the company's reputation in the long term.
3. Resource and cost expenditure:
   Setting up an internal reporting system is a major challenge, especially for small and medium-sized companies. High costs for technology, personnel and training as well as the risk of conflicts of interest are frequent obstacles.

Solution: Set up an internal reporting office with ARTS HR Lovers as an external service provider

ARTS HR Lovers offers companies a whistleblowing office as an external solution that meets all the requirements of the HinSchG while ensuring data protection and confidentiality and minimizing the administrative burden. This means that even medium-sized companies can offer a secure and anonymous platform for reporting grievances without risking internal conflicts of interest.

Results of the successful implementation

• Fast implementation: Your reporting center is set up within a few days.
• Legal security: All legal requirements are met - from data protection to confidentiality.
• Employee trust: Your employees can report grievances without fear of reprisals.

Added value through reporting office with ARTS HR Lovers

• External support for the reporting office: Processing is carried out by an independent service provider, which avoids internal conflicts of interest.
• Confidentiality & data protection: All reports are processed anonymously and stored securely.
• Compliance: The solution fulfills all legal requirements so that your company remains on the safe side.
• Increased trust: Employees are more willing to report grievances if their anonymity is protected.

Conclusion: Whistleblower Protection Act - legal certainty and trust

Looking back, it is clear that if a whistleblower system such as the Whistleblower Protection Act had been in place for earlier scandals, many companies could have saved themselves millions in fines and reputational damage. These systems make it possible to clarify grievances internally at an early stage - before they get out of hand.

The Whistleblower Protection Act is more than just a legal obligation. It is an opportunity for companies to strengthen employee trust and promote a transparent corporate culture.

Contact us to set up your legally compliant reporting office.

Sources: Deutsches Anwalt Office Premium, Redaktion, HI15555076 Stand: 18.01.2024 | HinSchG | IHK