Reversal of burden of proof
Under the German Whistleblower Protection Act, the reversal of the burden of proof presumes that any detriment suffered by a whistleblower is a prohibited reprisal, so the employer must prove that the measure was unconnected to the report.
The reversal of the burden of proof is a central safeguard of the German Whistleblower Protection Act (Hinweisgeberschutzgesetz, HinSchG). If a whistleblower suffers a detriment in connection with their professional activity after making a report or disclosure, Section 36 (2) HinSchG presumes that this detriment constitutes a reprisal in response to the report. This reverses the burden of proof that would normally rest on the claimant: it is not the whistleblower who must prove the causal link between report and disadvantage, but the employer who must prove the opposite.
The presumption applies where the person concerned asserts that they suffered a detriment as a result of a report or disclosure, and where they previously fell within the personal and material scope of the Act. Once the presumption is triggered, the employer must furnish full proof that the adverse measure – such as a dismissal, transfer, written warning or denied promotion – was based on sufficiently justified grounds that are entirely unrelated to the report. A mere denial or the bare assertion of objective reasons is not enough.
The reversal of the burden of proof complements the prohibition of reprisals under Section 36 (1) HinSchG and is what makes whistleblower protection practically enforceable, since whistleblowers can rarely prove their employer's internal motives. If the employer breaches the prohibition of reprisals, it is liable under Section 37 HinSchG to compensate the resulting damage; however, there is no claim to the establishment of an employment relationship or to career advancement. For organisations, this means that any personnel measure affecting a whistleblower should be carefully documented and substantiated so the presumption can be rebutted in the event of a dispute.
Legal Basis
Section 36 (2) HinSchG (in conjunction with Section 36 (1) and Section 37 HinSchG)
Practical Example
An employee reports indications of corruption in procurement through the internal reporting channel. Three weeks later she receives a dismissal, which the company justifies by an alleged restructuring. Because of the temporal proximity to the report, the reversal of the burden of proof applies: the company must prove before the labour court that the dismissal rested solely on a restructuring decided beforehand and not on the report. A compliance officer should therefore review and document in writing, before issuing any measure, that the decision was taken independently of the report and on demonstrable, justifiable grounds.