EnglishAvoid reporting indications to external bodies
The draft of the Whistleblower Protection Act provides for two possible recipients of tips for potential whistleblowers: the internal and the external reporting office.
The so-called Whistleblower Directive
The internal reporting offices are located directly in the respective company; they are mandatory for companies with 50 or more employees. The external reporting office, on the other hand, is an authority and is located at the Federal Office of Justice. The Federal Financial Supervisory Authority (BaFin) or the Federal Cartel Office is responsible for receiving reports of specific banking or antitrust law violations. The federal states can also set up their own reporting offices for violations in state and local government.
Directive (EU) 2019/1937 (the so-called Whistleblower Directive) contains a mandate for EU member states to advocate for a fundamental preference for internal reports over external reports. Internal reports, in the view of the European legislator, are the best way to bring information to the attention of those who can contribute to the early and effective prevention of threats. However, a whistleblower should also be able to use the external reporting office if, for example, he or she fears reprisals. Taken together, a whistleblower can therefore turn to the office that can best take remedial action in the specific case without having to impose disadvantages on himself.
The risk of external messages
Trotz dieses differenzierenden Gestaltungsauftrags an den deutschen Gesetzgeber stehen die internen und externen Meldestellen nach dem Entwurf eines Hinweisgeberschutzgesetzes in keinem hierarchischen Verhältnis zueinander. Der Whistleblower kann also Verstöße entweder der internen oder der externen Meldestelle mitteilen. Das bedeutet einen Wechsel zur bisherigen Rechtslage. Der Arbeitsvertrag verpflichtet Arbeitnehmer und Arbeitgeber zur gegenseitigen Rücksicht auf die Interessen des jeweils anderen. Diese Rücksichtnahmepflicht kann unter Umständen dazu führen, dass der Arbeitnehmer Missstände zunächst intern melden muss. Die Entscheidung des Gesetzentwurfs zur Parallelität interner und externe Meldekanäle erteilt diesem Vorrang zumindest im Anwendungsbereich des Entwurfs eine Absage.
The advantage of internal messages
External reporting can lead to a considerable additional burden for companies. On the one hand, this results from the disclosure of sensitive information. For example, the notification of a violation may at the same time include the disclosure of a trade secret. This is permitted insofar as the disclosure of the secret is necessary for the report. On the other hand, the external reporting office does not merely check whether the scope of the Whistleblower Protection Act is open and the report is valid. In many cases, it can and will also forward the report to the competent authority. The latter can then in turn take investigative measures itself. Thus, in the event of an external report, the company is directly threatened with the withdrawal of official permits, other administrative orders, fines and, if necessary, the criminal prosecution of responsible persons. Finally, there is also the risk of damage to the company's reputation if third parties become aware of the irregularities in the company.
Risk minimization measures
It is therefore advisable to work towards an internal priority for the internal reporting office. Various aspects must be taken into account here. On the one hand, it is important to minimize the advantages of external over internal reporting. On the other hand, incentives can also be set to primarily report internally. At the very least, the new draft law prohibits using coercion to prevent communication with the external reporting office. A contractual obligation to use the internal reporting office exclusively is also inadmissible.
The basic prerequisite for preventing external reports is a corporate culture that promotes internal reports. This requires the trust of potential whistleblowers that they will not be disadvantaged by a report. On the one hand, this includes the ban on reprisals imposed by law anyway, but also protection against social disadvantages in the working environment. It also makes sense to allow anonymous tips to the internal reporting office and to process them. The draft Whistleblower Protection Act does not provide for this. However, it does make it easier for employees who are particularly fearful of reprisals to make internal contact within the company. The assumption that anonymous reporting channels are more frequently misused was recently refuted by a study. Finally, employees can also be incentivized to give priority to internal reporting channels through monetary or other incentives.
Conclusion
The corporate risk of external reports is often the bottleneck for implementing internal reporting offices. To avoid the resulting disadvantages, a functioning whistleblowing system is required within the company. To this end, employees can be incentivized to give priority to internal reporting. In addition, it is important to minimize the risk of any disadvantages for the whistleblowers - here, too, the corporate culture plays a decisive role.
For the creation of internal reporting offices, it is worth considering the additional expense of going beyond the scope of the draft Whistleblower Protection Act by enabling anonymous reporting. Small companies with fewer than 50 employees should also consider whether they should set up internal whistleblowing offices on a voluntary basis in order to avoid the economic disadvantages of external reporting. In essence, then, external whistleblowing is best prevented by internal whistleblowing.