Germany’s Whistleblower Protection Act Now Covers Smaller Employers

In Germany, the Whistleblower Protection Act (WPA) took full effect in December 2023. Employers with more than 50 employees are now required to establish and maintain channels and offices (the WPA reporting office) for reporting misconduct that is covered by the law.

Such reporting channels are not new under German legislation. The General Act on Equal Treatment, for example, requires employers to establish complaints boards to allow employees to report incidents covered by that legislation. This mainly affects harassment on grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation. In such circumstances, the complaints board assesses the complaint and informs the complainant without having to meet any stringent deadlines or other formal requirements.

Reports under the WPA, on the other hand, must satisfy stringent requirements when it comes to answering and processing reports related to serious matters covered by the act. This includes all violations of German criminal law, as well as breaches of occupational health and safety regulations or violations of the German Minimum Wage Act. Other areas of German and EU law are also covered—for example, money laundering and terrorist financing.

In most cases, the WPA reporting office and the complaints board will coexist peacefully. But what if a harassment report submitted to the complaints board is so explosive that it is not clear whether it is also a criminal offense and hence a case for the WPA reporting office? Or what happens if a company uses a global ethics line as a uniform solution? In that case, how do you know which regime applies to such a report—the softer rules of the General Act on Equal Treatment or the more stringent requirements under the Whistleblower Protection Act?

At this point, these questions have not yet been resolved and employers will have to decide which procedure is the most appropriate for a particular report on a case-by-case basis. Here are three key recommendations for employers to follow:

• If a report regarding harassment indicates a serious transgression of boundaries, such as unwanted physical contact, the report should be handled according to the requirements under the WPA to be on the safe side.
• Documentation is key. As investigations into reports submitted by employees are often moving targets, all considerations of how to handle a report and the reasons for doing so should be thoroughly documented.
• Communicate how you are handling the report. When companies use a global helpline to cover all cases of misconduct, they should let the complainant know whether they are treating their report as a whistleblowing report or as a general harassment matter.

Laura Sparschuh is an attorney with Squire Patton Boggs in Berlin. © 2024 Squire Patton Boggs. All rights reserved. Reposted with permission of Lexology.