Prohibition of Retaliation (Section 36 HinSchG)
Protection against detriment for reporting — with a reversal of the burden of proof
TL;DR
The prohibition of retaliation under § 36 of the German Whistleblower Protection Act (HinSchG) prohibits any form of detriment to whistleblowers because of their report. Reversal of the burden of proof under § 36(2): where a whistleblower suffers a detriment after making a report, that detriment is presumed to be retaliation — and the employer must prove the opposite.
What is the Prohibition of Retaliation (Section 36 HinSchG)?
Forms that prohibited retaliation can take (§ 36(1) in conjunction with § 3(6) HinSchG):
- Dismissal (both ordinary and extraordinary)
- Written warning, reprimand
- Transfer, suspension
- Downgrading, denial of promotion
- Salary reduction, withdrawal of bonus
- Bullying, exclusion, intimidation
- Discrimination
- Negative performance appraisal
- Non-renewal of fixed-term contracts
- Damage to reputation
The Regional Labour Court of Lower Saxony (LAG Niedersachsen), 11 November 2024 (7 SLa 306/24), confirmed a two-stage test: stage 1, substantiated submissions by the whistleblower; stage 2, rebuttal evidence by the employer.
Legal position: Germany and Austria
In both countries the prohibition of retaliation derives from the EU Whistleblower Directive (Directive (EU) 2019/1937) (Art. 19, Art. 21), but it has been implemented differently at national level. The decisive difference lies in the standard of proof: a full reversal of the burden of proof in Germany, merely prima facie evidence in Austria.
Germany (HinSchG)
- Prohibition of retaliation: § 36(1) HinSchG — retaliation against reporting persons is prohibited, as are threats of retaliation and attempts at it.
- Reversal of the burden of proof: § 36(2) HinSchG — where the reporting person suffers a detriment after making a report, that detriment is presumed to be retaliation; the party causing the detriment bears the full burden of proof that the measure was based on sufficiently justified grounds or was not based on the report.
- Damages: § 37 HinSchG — the party responsible must compensate the damage caused (but this does not create any entitlement to an employment relationship or to career advancement).
- Fine: § 40(2) no. 3 and (6) HinSchG — up to EUR 50,000 for taking retaliatory action; for legal persons, up to ten times that amount, i.e. up to EUR 500,000, via § 30(2) sentence 3 OWiG (applicable under § 40(6) sentence 2 HinSchG). The competent fining authority is the Federal Office of Justice (BfJ), insofar as implementation of the Act falls to the Federal Ministry of Justice or an authority within its remit (§ 1 HinSchGOWiZustV).
Austria (Austrian Whistleblower Protection Act, HinweisgeberInnenschutzgesetz — HSchG)
- Prohibition of retaliation: § 20(1) HSchG — measures taken in retaliation for a justified report are legally ineffective, in particular suspension, dismissal, downgrading, denial of promotion, reassignment of duties, reduction of remuneration, disciplinary measures or withdrawal of a licence.
- No full reversal of the burden of proof, but prima facie evidence: § 23 HSchG — the reporting person must establish prima facie that the measure was taken in retaliation. Retaliation is not presumed where there is a higher probability of another motive, which the acting person must in turn establish prima facie — a weaker standard than the German full reversal of the burden of proof (§ 36(2) HinSchG).
- Damages: § 20(1) last sentence and (2) HSchG — restoration of the lawful situation, compensation for financial loss and compensation for the personal detriment suffered (including in cases of coercion, intimidation, bullying, discrimination, damage to reputation or blacklisting).
- Administrative penalty: § 24 HSchG — a fine of up to EUR 20,000, and up to EUR 40,000 in the event of a repeat offence, imposed by the district administrative authority (Bezirksverwaltungsbehörde).
Practical example
Example (constructed): an employee reports suspected corruption and is transferred a few weeks later. If the employee claims that the transfer was a consequence of the report, the presumption under § 36(2) HinSchG applies — the employer must prove that the transfer was based on sufficiently justified grounds or was not based on the report. Practice recommendation: document the reason for a personnel measure that is independent of the report before the measure is implemented.