Prohibition of Retaliation (Section 36 HinSchG)

Protection against disadvantage on grounds of whistleblowing - with reversal of burden of proof

Practitioner's note: This article is practice-oriented compliance documentation, not legal advice. We are a compliance specialist, not a law firm. For legally binding information please consult a licensed lawyer.

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)):

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).

Frequently asked questions

How long does the protection last?
Unlimited in time. Retaliation occurring years after the report can still fall under Section 36, provided causality can be established.
What happens upon proven retaliation?
Damages under Section 37 HinSchG (may cover ALL income losses through retirement). Plus a fine of up to EUR 50,000 (Section 40, x10 for legal entities).
Does the protection also apply to support persons?
Yes, Section 34 HinSchG. Persons who support the whistleblower (family members, lawyers) are also protected.

See also