In the first of a short series of blog posts on workplace harassment in Germany, Laura Sparschuh highlights Germany’s new Whistleblower Protection Act and key issues for employers to consider when handling reports of harassment.
In Germany, the Whistleblower Protection Act came into full effect in December 2023. The main news is that employers with more than 50 employees are now required to establish and maintain channels and offices (the WPA reporting office) for reporting misconduct that is covered by the Whistleblower Protection Act.
Such reporting channels are not new under German legislation. The General Act on Equal Treatment, for example, requires employers to establish complaints boards to allow employees to report incidents covered by that legislation. This mainly affects harassment on grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation. In such circumstances, the complaints board assesses the complaint and informs the complainant without having to meet any stringent deadlines or other formal requirements.
Reports under the Whistleblower Protection Act, on the other hand, must satisfy very stringent requirements when it comes to answering and processing reports related to serious matters covered by the Act. This includes all violations of German criminal law, as well as breaches of occupational health and safety regulations or violations of the German Minimum Wage Act. Other areas of German and EU law are also covered – for example, money laundering and terrorist financing.
In most cases, the WPA reporting office and the complaints board will coexist peacefully. But what if a harassment report submitted to the complaints board is so explosive that it is not clear whether it is also a criminal offence and hence a case for the WPA reporting office? Or what happens if a company uses a global ethics line as a one-size-fits-all solution? In that case, how do you know which regime applies to such a report – the softer rules of the General Act on Equal Treatment or the more stringent requirements under the Whistleblower Protection Act?
At this point, these questions have not yet been resolved and employers will have to decide which procedure is the most appropriate for a particular report on a case-by-case basis. We would, however, make the following three key recommendations for employers to follow:
- If a report regarding harassment indicates a serious transgression of boundaries, such as unwanted physical contact, the report should be handled according to the requirements under the Whistleblower Protection Act to be on the safe side.
- Documentation is key! As investigations into reports submitted by employees are almost always moving targets, all considerations of how to handle a report and the reasons for doing so should be thoroughly documented.
- Communicate how you are handling the report. Where companies use a global helpline to cover all cases of misconduct, they should let the complainant know whether they are treating their report as a whistleblowing report or as a general harassment matter.
In our next blog post, we provide a checklist for employers to consider when conducting investigations into workplace harassment in Germany.