In light of a recent ruling by the Düsseldorf Regional Labour Court, which deals with the reversal of the burden of proof in favour of a whistleblower under the EU Whistleblower Directive1, it is worth taking a closer look at the implementation of this provision in the German Whistleblower Protection Act (HinSchG).
Significance of the reversal of the burden of proof in the HinSchG
Section 36 para. 2 HinSchG stipulates that it is presumed in favour of a whistleblower who suffers a disadvantage in connection with their professional activity following a report that this disadvantage constitutes a retaliation for the report. Section 36 para. 2 HinSchG is of relevance if the employee claims a reprimand in accordance with Section 612a German Civil Code (BGB). In principle, the burden of proof of the existence of disadvantage and, in particular, the connection between the exercise of rights and the reprimand, lies with the employee. If Section 36 para. 2 HinSchG applies, however, it is assumed in favour of the employee that the disadvantage is a retaliation for the report made, ie that there is a causal connection between the exercise of rights (report) and the reprimand. The employer must then prove that the employee’s disadvantage was based on sufficiently justified reasons or was not based on the report. The only requirement for the applicability of Section 36 para. 2 HinSchG, in addition to the applicability of the HinSchG, is that the employee claims to have made a report...
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