Prohibition of Retaliation (Section 36 HinSchG)
Protection against disadvantage on grounds of whistleblowing - with reversal of burden of proof
TL;DR
The prohibition of retaliation pursuant to Section 36 of the German Whistleblower Protection Act (HinSchG) prohibits any form of disadvantage to whistleblowers on the grounds of their report. Reversal of burden of proof under Section 36(2): if a whistleblower suffers disadvantage following a report, this is presumed to be retaliation - the employer must prove the contrary.
What is the Prohibition of Retaliation (Section 36 HinSchG)?
Prohibited retaliation (Section 36(1)):
- Termination (ordinary + extraordinary)
- Warning, reprimand
- Transfer, suspension
- Demotion, denial of promotion
- Salary reduction, withdrawal of bonus
- Mobbing, exclusion, intimidation
- Discrimination
- Negative performance evaluation
- Non-renewal of fixed-term contracts
- Damage to reputation
The Lower Saxony Regional Labor Court (LAG Niedersachsen), ruling of 11 November 2024 (7 SLa 306/24), confirmed a two-step examination scheme: step 1 substantiated submissions by the whistleblower, step 2 counter-evidence by the employer.
Practical example
Practical case: an employee reports corruption on 12 February 2026 and is transferred on 15 March 2026. The reversal of burden of proof applies - the employer must prove that the transfer was NOT carried out on grounds of the report (E04 independence record).