Whistleblower protection – spotlight burden of proof in the case of disciplinary measures pursuant to Section 612a German Civil Code

In light of a recent ruling by the Düsseldorf Regional Labour Court, which deals with the reversal of the burden of proof in favour of a whistleblower under the EU Whistleblower Directive¹, it is worth taking a closer look at the implementation of this provision in the German Whistleblower Protection Act (HinSchG).

Significance of the reversal of the burden of proof in the HinSchG

Section 36 para. 2 HinSchG stipulates that it is presumed in favour of a whistleblower who suffers a disadvantage in connection with their professional activity following a report that this disadvantage constitutes a retaliation for the report. Section 36 para. 2 HinSchG is of relevance if the employee claims a reprimand in accordance with Section 612a German Civil Code (BGB). In principle, the burden of proof of the existence of disadvantage and, in particular, the connection between the exercise of rights and the reprimand, lies with the employee. If Section 36 para. 2 HinSchG applies, however, it is assumed in favour of the employee that the disadvantage is a retaliation for the report made, ie that there is a causal connection between the exercise of rights (report) and the reprimand. The employer must then prove that the employee’s disadvantage was based on sufficiently justified reasons or was not based on the report. The only requirement for the applicability of Section 36 para. 2 HinSchG, in addition to the applicability of the HinSchG, is that the employee claims to have made a report within the meaning of the HinSchG and to have suffered a disadvantage.

The catalogue of employer measures that constitute a retaliation within the meaning of Section 36 para. 2 HinSchG and for which a whistleblower can invoke the reversal of the burden of proof is long. Whistleblowers can claim the reversal of the burden of proof for all measures listed in Article 19 of the EU Whistleblower Directive and thus have a significantly improved position should legal proceedings arise. Article 19 of the EU Whistleblower Directive include dismissals, warnings, negative performance appraisals, the issuing of a poor reference, non-renewal of a fixed-term employment contract, denial of a promotion, etc.

This far-reaching legal consequence of Section 36 para. 2 HinSchG was already addressed by the legal literature during the legislative process. The Nuremberg Regional Labour Court (LAG) also commented on the reversal of the burden of proof enshrined in the Whistleblowing Directive even before the HinSchG came into force and pointed out that this "effectively postulates the employer’s duty to give reasons for the dismissal during the waiting period against the statutory provision". In principle, the Act on Protection against Dismissals does not apply if the waiting period is not reached (employment relationship has existed for more than six months) and therefore no justification for the dismissal is required. However, the applicability of Section 36 para. 2 HinSchG results in the need for the employer to give reasons for the dismissal through the backdoor. This is because the employer must disprove the presumption created by Section 36 para. 2 HinSchG that the dismissal (retaliation) is based on the exercise of rights (report) by providing reasons for the dismissal.

Practical note

Since the HinSchG came into force, case law has not yet dealt with the very broad scope of Section 36 para. 2 HinSchG. There is already a need for employers to take action: The establishment of a good case with strong evidence is the basis for the success of any litigation and has once again gained importance in measures against alleged or actual whistleblowers. In order to successfully disprove the presumption, employers should take procedural precautions to document any measures that fall under the catalogue of retaliation. This includes not only the measure itself, but already preparatory, comprehensible evidence such as performance appraisals, interview transcripts, file notes, etc.