Prohibition of Retaliation
The legal prohibition on taking adverse measures – such as dismissal or demotion – against whistleblowers as a consequence of their report.
The prohibition of retaliation (Repressalienverbot) is one of the cornerstones of whistleblower protection law. It prohibits organisations from taking any adverse measure against an individual because they submitted a report through an internal or external reporting channel in good faith. The German Whistleblower Protection Act (HinSchG) provides a non-exhaustive list of prohibited retaliatory measures, including dismissal, demotion, salary reduction, disciplinary sanctions, coercion, discrimination, and damage to professional reputation.
The HinSchG establishes a legal presumption in favour of the whistleblower: if a person who has made a report subsequently suffers an adverse measure, it is presumed that the measure constitutes retaliation. The burden of proof then shifts to the organisation to demonstrate that the measure was taken for legitimate, independent reasons unrelated to the report. This reversal of the burden of proof is a significant protection for reporters.
Violations of the prohibition of retaliation can result in substantial fines for the organisation and entitle the affected person to claim damages. Beyond the legal consequences, retaliatory behaviour severely undermines trust in the reporting system and the organisation's compliance culture as a whole. Proactive training of managers and a clear internal policy are essential to ensuring the prohibition is respected in practice.
Legal Basis
§§ 33–37 Hinweisgeberschutzgesetz (HinSchG); Art. 19–21 EU Directive 2019/1937
Practical Example
An employee reports suspected bribery through the company's internal whistleblower system. Three weeks later, the employee is excluded from a promotion they had previously been considered for. The employee files a complaint invoking the prohibition of retaliation under the HinSchG. Because the adverse measure occurred shortly after the report, the legal presumption of retaliation applies, and the company must prove that the promotion decision was made on entirely independent grounds.