The practical application of the Whistleblower Protection Act
The material scope of application is not formulated very clearly in the law. The HinSchG essentially applies to reports "on violations that are punishable by law" and to reports "on violations that are subject to fines, insofar as the violated provision serves to protect life, limb or health or to protect the rights of employees or their representative bodies." The other reportable violations primarily relate to regulations that were adopted to implement European regulations and are unlikely to be the main case in day-to-day business practice.
The internal reporting office, which according to the legislator is usually a person employed by the company, must check whether a report falls within the material scope of application.
While reports on violations subject to penalties will still be reasonably easy to assess, this is more difficult in the case of violations subject to fines.
This article aims to illustrate the material scope of application using examples.
Violations subject to fines
Examples of punishable offenses include theft and embezzlement of company property as well as (attempted) working time fraud. Physical altercations that constitute the offense of bodily harm are also recorded as a punishable offense.
Violations subject to fines
The assessment of violations subject to fines is more difficult. Here, it is not sufficient for the conduct per se to be subject to a fine. Rather, the violated provision must also serve to protect life, limb or health or to protect the rights of employees and their representative bodies. Due to this broad formulation, it is not always easy to assess individual cases.
Examples of infringements subject to fines include, in particular, infringements of occupational health and safety regulations such as the Ordinance on Industrial Safety and Health or the Workplace Ordinance. For example, the Industrial Safety Ordinance provides for the imposition of a fine for a large number of violations, including the failure to carry out a risk assessment in good time or the improper inspection and use of work equipment. As the regulations serve to protect the health of employees, any violations can be reported.
Bullying
However, the example of bullying shows that the distinction is not always easy to make. The mere fact that bullying constitutes harassment within the meaning of Art. 3 para. 3 AGG, for example, is not sufficient for a reportable violation. Rather, in this case too, either the threshold of a punishable violation, for example through insults, or a violation subject to a fine, for example by not granting a replacement rest day, must be exceeded.
Only if the material scope of application of the HinSchG is opened up is a violation reportable at all and the protection of the whistleblower guaranteed.
With regard to reportable violations and the resulting consequences, the decisive factor is whether the violation falls within the material scope of application. Both employers and employees should therefore thoroughly examine the requirements of the scope of application. We will be happy to assist you with this.