German Whistleblower Protection Act – Reporting channel is required where there are at least 50 employees

Developments in the legal situation 

The HinSchG has been applicable in Germany since 2.7.2023 and it aims to enable employees to confidentially report violations of the law at their companies. In connection with this, companies with at least 250 employees were initially obliged to establish and operate internal reporting channels so that employees would be able to submit their confidential reports to a specially designated body. By submitting a report under the HinSchG employees should be protected, in particular, against subsequent retaliatory measures on account of their reports. 

This legislation was considerably expanded now in the middle of December 2023. Since 17.12.2023, companies with at least 50 employees have now also been obliged to establish and operate internal reporting channels for reports under the HinSchG. In this case, the number of employees is calculated on a per head basis and not according to the number of full-time and part-time jobs. Furthermore, this provision applies irrespective of the legal form.

Moreover, the provision in the HinSchG on fines likewise came into force on 2.12.2023. Companies thus now face the risk of being fined up to €50,000 if the legal requirements are not or not properly implemented.

Set-up of the reporting channel 

The internal reporting channel has to be set up in such a way that the persons who process the reports have access to them, but the information cannot be passed on to third parties in the company. In any event, the confidentiality of the report has to be ensured. The reports may be submitted in text form or verbally. 

Access to the whistleblower system should generally be made as straightforward as possible so as to enable every employee to submit information. A web-based whistleblower system would be particularly suitable here. The information has to be erased after three years. 

Please note: Contrary to widespread opinion, companies are not obliged to set up the reporting channel in such a way that makes it possible to submit anonymous reports since, shortly before the Act came into force, German lawmakers had already removed the obligation to receive and process information provided on an anonymous basis.

Recommendation: If an internal reporting channel has not yet been set up we would strongly recommend that you do so right away. Here, it would be advisable to use a web-based solution because this frequently makes a swift and cost-effective implementation in the company possible while ensuring confidentiality.