A country’s culture and the question of how whistleblowing is understood and perceived by society has a huge influence on the acceptance of whistleblowing measures in organisations. Whistleblowing tools can only be used effectively and bring benefits if these measures find acceptance within the workforce .
In Germany, the literal translation of the term ‘whistleblowing’ into German already causes difficulties. It leads to an implication of ‘snitching’ on someone and is therefore negatively tainted. Deviating from the literal translation, whistleblowing is more objectively defined as providing information about internal irregularities or violations of the law without being subject to disciplinary action.
While whistleblowing is mainly perceived in a positive light in Anglo-American common law countries, whistleblowers in Germany are to this day often regarded as informants. The reasons for this are mainly attributed to the historical experience of National Socialism and the German Democratic Republic (GDR).
In the Third Reich, the Gestapo used denunciation to maintain the totalitarian NS system. People who were critical of the Nazi state were denounced by their fellow citizens. Denunciation even reached into families. Children were encouraged to turn in their parents if they made critical statements about the system. Informants contributed to the elimination of political opponents and were an important factor in stabilising the Nazi regime.
Informants were also used in the German Democratic Republic to keep the regime in place. So-called ‘unofficial collaborators’ secretly passed on information to the Stasi about people from their personal or professional environment. Neighbours reported on neighbours, students on fellow students and often, even the closest of friends and family members were spied on.
The use of denunciation to strengthen National Socialism and the GDR has led to considerable reluctance to expose misconduct. The biases resulting from German history have caused a situation in which whistleblower protection has not played a major role in legislation.
As a result, there has never been a general set of rules on whistleblower protection or a general sector-independent obligation to implement a whistleblower protection system in Germany. Only isolated regulations obliging organisations and authorities to enable reporting exist with regard to special matters (e.g. in the financial sector).
This has not yet resulted in effective protection for whistleblowers. According to current case law, a whistleblower must first check if it is permissible to pass on information, otherwise s/he faces sanctions under employment law and considerable uncertainties for the employment relationship.
However the forthcoming implementation of the EU Whistleblowing Directive will change this situation. The German Whistleblower Protection Act (Hinweisgeberschutzgesetz) aims at creating legal clarity for whistleblowers about when and by what requirements they are protected when reporting violations.
Significantly, awareness-raising on the issue of whistleblowing so far has hardly been driven by public authorities. In Germany, it has primarily been organisations themselves that have contributed to raising awareness by (voluntarily) introducing effective whistleblowing systems and highlighting their benefits.
The Whistleblowing Report 2021 conducted by the University of Applied Science Graubünden and the EQS Group clearly shows how much organisations benefit from whistleblowing systems. The survey asked over 1,200 companies in Germany, France, Great Britain and Switzerland about whistleblowing and reporting offices. More than 60% of the companies surveyed had already set up a reporting office. They receive an average of 34 reports per year. About one-third of the participating companies were affected by illegal and unethical behavior in 2020. In addition to the damage detected by the reporting offices, the companies in Germany cited a better understanding of compliance among employees, optimised compliance processes and higher employee satisfaction as the main benefits.
In summary, it appears that cases where employees are educated about the necessity and advantages of whistleblowing in particular or compliance in general have so far not stemmed from government awareness programmes or general education campaigns, but are the result of a functioning self-initiated intra-company culture.
But in the organisations which have proactively pushed to put whistleblowing systems in place, it has been observed that Germany’s past has an obvious impact in the workplace and makes it difficult to implement whistleblowing effectively. This means German employers will have to pay special attention to establishing and maintaining employee trust in the independence and functionality of the whistleblowing process. A workplace culture that promotes integrity is the basis for achieving compliance goals. Open internal communication processes strengthen the acceptance of compliance measures by employees. Employees’ mindset must be proactively changed to favour an open approach to sensitive issues (so-called speak-up culture). Only with comprehensive and regular training at all levels can an organisation emphatically express its will to implement compliance measures and bindingly demand adherence to behavioural guidelines to employees. The long-term goal must be to keep the whistleblower issue permanently present so that over time it becomes less of a negative curiosity for employees and more of a normal aspect of working life that can no longer be dismissed.
Designing internal company channels to appeal to employees is of particular importance in Germany for another reason: German legislation will presumably give more scope for going to external reporting bodies than is required by European law. Where the EU Whistleblowing Directive provides in Article 7(2) that member states shall endeavour to ensure that the internal reporting channel is ‘preferred’ over the external reporting channel, under the German draft law internal and external reporting channels are considered equally valid. Since it is of great interest to employers that potential grievances are clarified internally in the first instance to avoid possible damage to reputation or financial loss, they should take all the more care not only that the legal requirements are complied with but also that internal reporting channels are actively used by employees.
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