It is not automatic – whistleblower protection does not apply without a causal link

The Whistleblower Protection Act prohibits reprisals against whistleblowers (Section 36(1) HinSchG). Employees who report misconduct within a company must not be penalised for speaking out. In this regard, they benefit from a reversal of the burden of proof: if a whistleblower suffers disadvantage following a report, it is presumed that this constitutes reprisal and occurred as a result of the report (Section 36(2) HinSchG). The employer must then prove that the measure was based on sufficiently justified grounds or was not based on the report.

It had previously been unclear how strictly the courts would apply this causality test – and whether the HinSchG effectively becomes an early form of protection against dismissal during the transitional period when the KSchG does not yet apply.

Facts of the case

A pharmaceutical sales representative in the field had been employed by the defendant since 1 May 2023. On 5 September 2023, following a dispute during a staff appraisal, a so-called ‘accompanied visit’ took place in the claimant’s sales territory in the presence of his line manager. Due to technical problems, the line manager initially signed on the claimant’s tablet in place of the customer to document the customer’s consent to advertising. On the very same day, the line manager initiated the claimant’s dismissal.

On 7 and 8 September, the claimant reported the incident involving his supervisor’s signature to the works council and the internal compliance unit. On 27 September 2023 – whilst the notice period was still ongoing – the employer gave notice of termination in accordance with the ordinary procedure. The claimant regarded this as unlawful retaliation. The works council had also objected to the dismissal, which is why the claimant demanded continued employment pursuant to Section 102(5) of the Works Constitution Act (BetrVG).

The decision

The Federal Labour Court (BAG) upheld the rulings of the lower courts and deemed the dismissal valid. Whilst dismissals may, in principle, constitute reprisals within the meaning of Section 36 of the Whistleblower Protection Act (HinSchG), a causal link is required. Actions constitute prohibited reprisals and trigger whistleblower protection only if they are taken in response to a report or disclosure. Although the presumption under Section 36(2) of the HinSchG works in favour of the whistleblower, it is rebuttable. In the present case, the employer was able to demonstrate and prove that the decision to dismiss had already been taken before the claimant made the report. An email from the line manager dated 5 September 2023 – i.e. prior to the report – documented the intention to terminate the employment. The court accordingly ruled in favour of the employer and did not regard the dismissal as a reaction to the report; there was no causal link. There was also no evidence that the employer had been aware of the intended report. The Senate likewise rejected the claim for continued employment under Section 102(5) of the Works Constitution Act (BetrVG): this presupposes the application of protection against dismissal and does not apply during the waiting period.

Implications for practice

The judgement provides two key clarifications. Firstly, the Federal Labour Court (BAG) reiterated that the HinSchG does not, in itself, provide protection against dismissal. Making a report alone does not protect against dismissal. For the protective effect to apply, a causal link is a prerequisite. Furthermore, this case also highlights the importance of documentation. The reversal of the burden of proof under Section 36(2) of the HinSchG requires employers to document, without omission, the chronological sequence of the decision to dismiss, the decision-makers’ level of knowledge and the receipt of the report. Internal reporting channels should record incoming reports in an audit-proof manner, including the date. Decisions to dismiss must be recorded in writing without delay. However, the protective effect of the HinSchG is not limited solely to dismissals. Other measures, such as the withdrawal of bonuses, the withholding of pay rises or transfers, may also constitute reprisals. The same documentation requirement therefore also applies to these cases.

Practical tip

Documentation remains the be-all and end-all. Even decisions to dismiss an employee should be recorded in writing before they are carried out – as this case shows, a dated email or memo can be decisive in the proceedings.