9. May 2023In Whistleblower Protection Act3 Minutes

The forthcoming Whistleblower Protection Act (HinSchG) provides that companies falling under the scope of the Act must establish an “internal reporting office”.

High responsibility of the “internal reporting office

The “internal reporting office” has a high level of responsibility. It receives incoming reports via the whistleblower system, communicates with the whistleblower and acts independently and impartially. It is responsible for clarifying the facts and must take so-called “follow-up measures” on its own responsibility. These include in particular

  • conduct internal investigations,
  • refer the whistleblower to other internal services,
  • close the proceedings for lack of evidence or
  • transfer the proceedings to another body for further investigation, such as a competent authority.

Against this background, companies should first take care of staffing the “internal reporting office” before setting up a whistleblowing system (e.g. via a digital tool).

Conflict of interest risk
With the internal staffing of the “internal reporting office”, it is obvious that conflicts of interest may arise. Especially if allegations concern other employees or even the superior or the management. Because in this case, investigations must be carried out independently and on one’s own responsibility.

Criminal law risk

It is conceivable that due to the far-reaching responsibility and corresponding powers of the “internal reporting office”, a criminal law risk (similar to that of a compliance officer) may exist for them. If, for example, indications of criminally relevant conduct are not followed up or an internal procedure is wrongly discontinued, criminal liability for omission would be conceivable.

Whether the internal reporting office has such a responsibility in the form of a guarantor position to prevent criminal offences will have to be decided by the courts in the future. In any case, the fact is that a similarly high level of responsibility exists as with an internal compliance office. Employees in the company should therefore inform themselves about possible liability risks and precisely define the powers and duties in the employment contract or job description.

Outsourcing as a good alternative

Companies are well advised to outsource such an “internal reporting office” function. A qualified service provider brings the necessary sensitivity and experience and is also not subject to any conflicts of interest. In addition, there is a liquid (insured) debtor in the event of a claim.

We offer the total package 

We offer you the complete package of a digital whistleblower system and an external ombudsperson so that you can implement all the requirements of the Whistleblower Protection Act (HinSchG) pragmatically and cost-effectively.

More information at www.kln-hinweisgebersystem.de