The European Court for Human Rights (ECHR) ruled by judgement
dated 21 July 2011 (docket no. 28274/08) that employees who
publicly disclose deficiencies within the enterprise of their
employer cannot be terminated without notice. This has strengthened
the position of so-called "whistleblowers", as the
arbitrary disclosure of company-internal grievances by employees
has frequently been taken as a good cause ("wichtiger
Grund") to date for justifying an extraordinary
The plaintiff was an elderly care nurse and persistently notified the management of serious deficiencies in the care of the elderly patients; deficiencies which were also established by the Medizinischer Dienst der Krankenkassen (MDK), the medical review board of the statutory health insurance funds. Having repeatedly notified these grievances without achieving any improvements of the situation whatsoever, the employee then filed a complaint of fraud to the detriment of elderly care patients. The enterprise initially terminated the employee's employment relationship by ordinary termination on grounds of her multiple absences due to illness and subsequently, after the complaint became publicly known, by extraordinary termination.
The German courts – with the exception of the Labour Court of Berlin – deemed the public disclosure to be a gross violation of the employee's loyalty obligations and upheld the immediate termination. However, the ECHR deemed it an infringement of the employee's freedom of opinion on the basis that, despite the fact that the allegations raised were suited to damage the reputation and business interests of the enterprise, this aspect would have to stand down in view of the public's right to be informed. For this reason, the ECHR considered the immediate termination to be unreasonable and subsequently awarded the plaintiff compensation.
It remains to be seen how the German courts will react to the judgement. A parallel focus hereto will be the legislative development in Germany, as the regulation of special protective measures for whistleblowers by the end of the year 2012 was promised within the scope of the G20 action plan against corruption. The SPD has already announced for the coming autumn a draft bill which should strengthen the rights of whistleblowers.
Also noteworthy in this connection is the recent entry into force of a new whistleblowing programme of the American Securities and Exchange Commission (SEC), pursuant to which persons who notify violations of US stock exchange regulations are given greater protection. In addition thereto, the premium payments envisaged herefor have been increased, thus encouraging the prompt and detailed notification of violations.
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