§ 36 HinSchG: the reversal of the burden of proof and what it means for personnel decisions after a report

Key takeaways

• § 36 (2) sentence 1 HinSchG presumes that a detriment suffered after a report is a reprisal, as soon as the reporting person asserts it.
• Under § 36 (2) sentence 2 HinSchG the person who caused the detriment must then prove that it rested on sufficiently justified grounds or did not stem from the report.
• § 36 (1) sentence 2 HinSchG also prohibits the threat and the attempt of a reprisal.
• The protection applies only under the conditions of § 33 (1) HinSchG; the presumption is not unconditional.
• In a dispute, only what was created before the report, or demonstrably independently of it, carries weight.

What paragraph 1 prohibits

§ 36 (1) sentence 1 HinSchG reads: Gegen hinweisgebende Personen gerichtete Repressalien sind verboten. Sentence 2 reads: Das gilt auch für die Androhung und den Versuch, Repressalien auszuüben.

Sentence 2 is frequently overlooked although it widens the scope considerably. What is prohibited is not only the completed measure but already its threat. A sentence in a conversation that holds out a consequence therefore falls under the same provision as the transfer itself. For managers who learn of a report, that is the more important half of the norm, because it bites much earlier than the personnel decision does.

Paragraph 2: the presumption and what sets it off

§ 36 (2) sentence 1 HinSchG reads: Erleidet eine hinweisgebende Person eine Benachteiligung im Zusammenhang mit ihrer beruflichen Tätigkeit und macht sie geltend, diese Benachteiligung infolge einer Meldung oder Offenlegung nach diesem Gesetz erlitten zu haben, so wird vermutet, dass diese Benachteiligung eine Repressalie für diese Meldung oder Offenlegung ist.

Three elements determine when the presumption applies. There must be a detriment in connection with the person's professional activity. The person concerned must assert that they suffered it as a result of a report or disclosure. And the report or disclosure must be one under this Act.

The third element is where the presumption finds its limit, and it is routinely skipped in the internal debate. § 33 (1) HinSchG provides that §§ 35 to 37, which include § 36, apply to reporting persons provided that they reported internally under § 17 or externally under § 28 or made a disclosure under § 32, provided that at the time of the report or disclosure they had sufficient reason to believe that the information reported was true, and provided that the information concerns breaches falling within the scope of the Act, or that they had sufficient reason to believe that this was the case.

The presumption is therefore conditional, but conditional in a way that is uncomfortable for the employer: two of the three conditions in § 33 (1) HinSchG turn on sufficient reason to believe at the time of the report, that is, on the reporting person's perspective and not on the later outcome of the investigation. A report that turns out to be unfounded does not automatically lose the protection.

Who has to prove what

§ 36 (2) sentence 2 HinSchG reads: In diesem Fall hat die Person, die die hinweisgebende Person benachteiligt hat, zu beweisen, dass die Benachteiligung auf hinreichend gerechtfertigten Gründen basierte oder dass sie nicht auf der Meldung oder Offenlegung beruhte.

The sentence offers two routes out, and they differ. The first goes to the justification of the measure itself: there were sufficiently justified grounds. The second goes to causation: the measure did not stem from the report. In practice both are run together, because the most convincing proof of causation is the one showing the decision already stood for other reasons.

That moves the work forward in time. A company that only documents its grounds after the report documents them in a situation where the presumption already runs against it. One that documented them beforehand produces a record that cannot have been influenced by the report.

Which records hold up

From the allocation of the burden follows a requirement on the personnel file that has nothing to do with the reporting channel and yet hangs off it. From the moment a report arrives, every decision affecting the reporting person needs an independent, dated and self-explanatory justification.

• Performance appraisals and objective agreements drawn up and signed before the report.
• Written warnings, meeting notes and documented performance shortfalls dated before the report.
• Restructuring, site and headcount decisions that cover the position independently of the individual, with a dated resolution.
• Selection criteria applied equally to several employees, with evidence of that equal application.
• Fixed-term and renewal logic that follows a pre-existing rule rather than a case-by-case decision.

What is weak can be named just as precisely: a performance problem first documented after the report, a selection decision without recorded criteria, and a justification that comes into existence during the proceedings. Such records are not worthless, but they will not usually carry the burden under § 36 (2) sentence 2 HinSchG on their own.

Why confidentiality becomes an organisational question here

The presumption in § 36 (2) HinSchG attaches to a detriment suffered by a reporting person. It therefore assumes that somebody knew about the report. That is precisely why the access restriction in § 16 (2) HinSchG, under which only the people responsible for receiving and handling reports and those supporting them may access incoming reports, is not merely a data protection rule.

It is at the same time the most effective defence in a dispute. A company able to show that the manager who took a measure had no knowledge of the report makes out the causation route by the shortest path. A reporting procedure in which the circle of those who knew is documented produces that evidence as a by-product. A procedure in which reports travel through general mailboxes and forwarded email produces the opposite.

The sanction side, in one sentence

Taking a reprisal contrary to § 36 (1) sentence 1 HinSchG is an administrative offence under § 40 (2) no. 3 HinSchG and can be fined up to fifty thousand euros under § 40 (6) HinSchG, as can obstructing a report under § 40 (2) no. 1 HinSchG, whereas failing to operate an internal reporting office is the case in § 40 (2) no. 2 HinSchG and sits at up to twenty thousand euros under § 40 (6) HinSchG, and § 30 (2) sentence 3 OWiG applies under § 40 (6) sentence 2 HinSchG only to the cases in (2) nos. 1 and 3 and in (3) and (4).

In context

§ 36 HinSchG is the provision that turns a reporting channel into an HR matter. The reporting office receives, examines and gives feedback; the burden of proof falls on whoever decides about transfer, appraisal, renewal and dismissal. Between the two lies the question of who knows about a report and whether that can be evidenced.

In practice this comes down to two tasks that can be scheduled and documented: an evidenced, narrow circle of people who know, and a dated justification for every personnel decision affecting a reporting person. Neither is produced in the dispute. They are produced beforehand or not at all.

CIVAC is not a law firm and provides no legal services within the meaning of the German Legal Services Act (Rechtsdienstleistungsgesetz). This article sets out the wording and describes how the duty can be organised. The legal assessment of your individual case belongs to your legal department or your external counsel.

FAQ

What does the reversal of the burden of proof under § 36 HinSchG say?

§ 36 (2) sentence 1 HinSchG provides that where a reporting person suffers a detriment in connection with their professional activity and asserts that they suffered it as a result of a report or disclosure under the Act, that detriment is presumed to be a reprisal for the report or disclosure. Under sentence 2 the person who caused the detriment must then prove that it rested on sufficiently justified grounds or that it did not stem from the report or disclosure.

Does the presumption apply to every report?

No. § 33 (1) HinSchG makes the applicability of §§ 35 to 37, which include § 36, dependent on three conditions: a report made internally under § 17 or externally under § 28, or a disclosure under § 32; sufficient reason at the time of the report to believe that the information was true; and information concerning breaches falling within the scope of the Act, or sufficient reason to believe that this was the case. Two of those conditions turn on the reporting person's perspective at the time of the report, so a report that later proves unfounded does not lose the protection for that reason alone.

How can an employer rebut the presumption?

§ 36 (2) sentence 2 HinSchG names two routes: proving that the detriment rested on sufficiently justified grounds, or proving that it did not stem from the report or disclosure. In practice what carries weight is documentation created before the report, such as recorded performance shortfalls, an already resolved restructuring, or selection criteria applied equally to several employees. The second route succeeds most clearly where it can be evidenced that the deciding manager had no knowledge of the report.

Does merely threatening a measure count as a reprisal?

Yes. § 36 (1) sentence 1 HinSchG prohibits reprisals directed against reporting persons, and sentence 2 makes clear that this also applies to threatening and attempting to take them. The protection therefore begins before the measure is carried out.

What role does the circle of people who know play?

A large one, because it decides the second route out. § 16 (2) HinSchG requires reporting channels to be designed so that only the people responsible for receiving and handling reports, and those supporting them in that task, have access to incoming reports. Where that circle is kept narrow and documented, it can be shown in a dispute that the deciding body knew nothing of the report. Where reports travel through general mailboxes and forwarded email, that evidence can usually no longer be produced.