Expert questions on the Whistleblower Protection Act
1. Question: Do applicants fall under the definition of employment according to the HinSchG?
It’s a really exciting topic. The wording of the Whistleblower Protection Act (HinSchG) does indeed suggest that applicants generally do not fall under the definition of employee and should therefore not be able to turn to an internal reporting office. Nor does this directly contradict the personal scope of application pursuant to § 1 (1) HinSchG, which undisputedly includes applicants, because applicants can still turn to external reporting offices. In addition, employers are free to design their internal reporting offices in such a way that they are also open to applicants, § 16 para. 1 HinSchG. In these cases, the law on the protection of applicants as whistleblowers also applies.
2. Question: To what extent does the Whistleblower Protection Directive (Directive (EU) 2019/1937) include applicants as whistleblowers?
The wording of the Whistleblower Protection Directive (Directive (EU) 2019/1937), which was implemented by the HinSchG, also argues against the general inclusion of applicants as whistleblowers at internal reporting offices. In accordance with Article 8(2) of the directive, workers must be allowed to report information on infringements. Pursuant to Article 4(1)(a) of the Directive, the Directive applies to workers within the meaning of Article 45(1) TFEU. Article 4(3) of that directive extends the scope ratione personae to reporting persons whose employment relationship has not yet commenced and who have obtained information about breaches during the recruitment procedure or other pre-contractual negotiations. It may be inferred from this that, although the Directive does not, in principle, cover candidates within the definition of worker, it is nevertheless intended to protect them.
Within the framework of the internal reporting office, however, not only employees should be able to report, but also other groups defined in Art. 4, such as self-employed persons pursuant to para. 1 lit. b or whistleblowers pursuant to para. 2, who report or disclose information about violations of which they have become aware in the context of an employment relationship that has since ended. On the other hand, paragraph 3, i.e. the group of applicants, is not mentioned.
However, it is doubtful whether this result is compatible with the protective purpose of the provision, bearing in mind that, for example, recital 39 of the Directive explicitly mentions the protection of applicants against retaliation under labour law. A protection against reprisals, but one that would be particularly relevant in the case in which the applicant turned to an internal reporting office of the future employer.
The argument from the essay that an interpretation of the concept of employee in conformity with European law could certainly also include applicants, as Art. 45 Ab. 3 lit a TFEU can certainly be heard.
3. Question: What does this mean for implementation in the company?
- As long as there is no case law in this area and the legal literature has yet to open up the topic, it is difficult to give a clear answer here as to how companies should design their internal reporting offices with regard to whistleblowing applicants.
- In any case, you are on the safe side for the time being if you also allow applicants to provide information to the internal reporting office.
- The same applies to the information provided by the internal reporting office. Recital 59 of the Whistleblower Protection Directive states:
- ‘Persons wishing to report breaches of Union law should be able to make an informed decision as to whether, when and how to report them. Legal entities in the private and public sectors that have internal reporting procedures in place should be required to provide information on those procedures as well as on external reporting procedures to the relevant competent authorities. It is essential that this information should be clear and easily accessible, including, as far as possible, for persons who are not employees of the undertaking but who come into contact with the undertaking in the course of their professional activities…’
Thus, it is well justified that applicants should also be entitled to report.
For further information, please contact:
Matthias Gleich, Lawyer
SCHMID FRANK, Augsburg
e: ed.knarf-dimhcs@hcielg.saihttam
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