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
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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