Generally speaking, unions and work councils are positively disposed to the use of whistleblowing systems since it is in the interest of the companies to prevent the crimes that whistleblowers disclose.
Factors to consider are:
· The structured registration of definable topics
Whistleblowers should only be able to submit information regarding topics specified by the work council.
· No efficiency control
Efficiency control is to be avoided with the help of topic-specific report registration, thereby making the use of telephone hotlines obsolete.
· Absolute anonymity in order to protect employees
The individual employee is thus able to exercise his own responsibility in order to protect the company without being subjected to personal reprisals.
· Use of dialogue in order to evaluate the report and to minimize denunciations
Even in an anonymous whistleblowing system dialogue is necessary so that reports can be evaluated quickly and denunciations can be eliminated. No denunciation can stand up against the repeated questioning of experts without revealing its lack of credibility by means of a plausibility analysis.
The Hans Böckler Stiftung, the co-determination- research- and scholarship department of the German Trade Union Federation, has also voiced its opinion regarding this. In one of its press releases from 28.11.2006, the introduction of a whistleblowing system is recommended. Such a system should allow anonymous reports to be submitted that could then be verified through dialogue.
In the Hans Böckler Stiftung’s work guideline entitled "Whistleblowing," the author RA Björn Rohde-Liebenau demands personnel and employee committees to be more transparent and communicative at the upper levels and for measures to be taken against the “culture of silence.” The trade unions are making steps to actively support and protect whistleblowers.
This is because, time and again, there have been cases where there have been internal reports of risk and damages, but the information either came too late or was ignored.
Yet personnel and employee committees and union members play a key role in supporting their fellow employees so that such risks are pointed out in time so that an inter-organizational culture of openness is created that protects not only the lives and health of employees, but also the existence of jobs and companies themselves.
Every employee is obligated to bring severe irregularities to his employer’s attention. Generally speaking, however, the fact that crimes are committed in companies seems to be a secret that companies often keep to themselves. Charges can only be made once an employer does not seek to rectify the situation after he has received an internal report.
The Federal Constitutional Court passed a verdict, however, in 2001 (BVerfG 1 BvR 2049/00) stating that employees may bring charges against employers who commit crimes. Until now, this was in defiance of the employee’s duty of allegiance. The reciprocal employer’s duty of care never stood in the way of his being able to bring charges against one of his employees.
The Federal Labor Court passed a verdict (BAG 2 AZR 235/02) stating that in no way did the Federal Constitutional Court mean that an employee could, as a rule, bring charges against his employer for crimes the employer committed. On the contrary, more important was to examine, among other things, if the employee wanted to harm his employer.
It is obvious, thus, that, above all, the strength of the evidence law is extremely dangerous for the whistleblower.
In order to fulfill evidence law requirements it is always imperative that the employee informed his superior at an early stage and that he can prove he did this. He must prove that the report was so detailed that a reaction to it was mandatory. Above all, the employee must prove that the information he provided was accurate and complete. If a report appears to be unreasonable or ineffective to his superior, the whistleblower must prove its contents. Additionally, he must also be able to prove that he had no desire to harm his employer and that he had no cause to assume that his employer could have been harmed in any way possible.
A whistleblowing system is therefore required that protects the whistleblower through anonymity but that still allows a dialogue in order to confirm the validity of information provided. This anonymous dialogue satisfies the demand that the validity of a report is verified before in-depth investigations are conducted against the accused.
A culture of snitching and denunciation is not the result of transparent and efficient risk communication but rather it arises when this path of communication is missing. In reality, every employee is also a risk manager. If a company fails to include all its workers in its risk management system, it is wasting available resources, including the existing knowledge of its employees and their motivation to consistently contribute to the improvement of the company and its products.
An important guideline to consider regarding whistleblowing is § 87 I No. 1 BetrVerfG (questions regarding the structure of a company and the conduct of its employees) and No. 12 (principles on company suggestion systems). The first principle should be the establishment of rules about when, how and to whom employees with information regarding risks can turn. The company‘s suggestion system (§ 87 I No. 12 BetrVerfG), therefore, is called upon to act because suggestions for improvement and reports regarding risks typically go hand in hand. A constructive report about a risk, which also includes ways of dealing with the situation, is always the same as a suggestion for improvement.
When the employee and personnel organizations actively study the topic, they give the employees the opportunity to display a sense of responsibility in their place of work – in case of doubt in service to the public, but certainly for the sake of the preservation of their job and its qualitative improvement.