Protected Disclosures Act 2000 : a model for the German legislation to fill the existing legal gap?

Abstract

The purpose of this paper is to propose legislative protection for whistleblowing in Germany. Whistleblowing, that is, the disclosure of wrongdoings within an organisation, may be one of the most difficult decisions that an employee will have to make. The decision to make concerns public may include significant personal, ethical, and particularly legal consequences for the whistleblower. In most cases a potential whistleblower must consider the possibility of reprisals from the employer or other involved parties. However, whistleblowing also provides benefits for an organisation. Whistleblowing gives an organisation the opportunity to correct any wrongdoing before it escalates. Potential whistleblowers are in the best position to discover wrongdoings and to offer solutions because of their involvement in the working process. Furthermore, organisations can benefit from whistleblowing because it gives them the opportunity to establish certain competitive advantages. Many countries, such as the United States, the United Kingdom and New Zealand have already recognised and appreciated the importance of whistleblowing in an efficient employment system. These countries have enacted whistleblower protection acts in order to promote whistleblowing and to protect whistleblowers from potential reprisals. In comparison with these foreign jurisdictions, the German approach to whistleblowing is still in its infancy. The current German scheme of regulation is inadequate because neither the German legislation nor its judicial decision-making offers general legal protection for whistleblowers. Due to the importance of the whistleblowing process for society, legislation is needed to regulate the phenomenon of whistleblowing. This paper proposes that the New Zealand Protected Disclosures Act 2000 (PDA) is a good basis for a new German whistleblower protection act. However, the Act would need to be amended in order to be more effective in the German context. On this basis, the paper introduces a proposal for a German whistleblower protection act ("Whistleblower Schutzgesetz WbSG").