How exactly does the Whistleblower Protection Act apply? A recent judgment in a case at Volkswagen provides new insights. Two former VW managers have sued the Lower Saxony State Labor Court (LAG) for damages and compensation for pain and suffering. You have pointed out alleged rule violations within the company several times. However, the employer then did nothing. Instead, according to their own statements, they were disadvantaged in promotion decisions.
The VW managers saw this as a violation of the Whistleblower Protection Act. This law has been in force since July 2023 and protects people who point out legal violations in a company in a professional context from discrimination. This is the second attempt by the two plaintiffs to take legal action. As early as June 2025, they had failed in their claim for damages before the Braunschweig Labor Court (judgment of June 24, 2025, ref.: 6 Ca 303/24).
No application of the Whistleblower Protection Act
The LAG Lower Saxony did not follow the arguments of the two ex-managers. According to the judgment of May 29, 2026 (LAG Lower Saxony, Ref. 17 SLa 618/25 and 619/25), the Whistleblower Protection Act does not apply in this specific case.
On the one hand, the internal information is already there
before the law comes into force. On the other hand, the plaintiffs did not submit the information via a protected internal reporting point, but rather “informed their superiors as part of their employment contractual obligations,” as the LAG Lower Saxony announced.
The lawsuit also failed as a result, as the plaintiffs were unable to prove either concrete damage or a sufficient connection between the alleged information and the alleged disadvantages in promotions.
Whistleblower Protection Act: There are still many unresolved legal questions
The non-profit association Whistleblower Network eV, which advocates for the legal protection of whistleblowers, warned in the lower court’s ruling that the legal situation and the practical implementation of the Whistleblower Protection Act continue to raise numerous unresolved legal questions, which is also evident in the VW case. Questions such as “Which reporting channels are considered protected?” and “How narrow is the scope of application?”, or in other words “What specific use cases are there?”, are still unclear. According to the association’s chairwoman, Annegret Falter, there was a lack of supreme court decisions back then – and probably today – that would have bindingly clarified central disputes and thus created more legal certainty for whistleblowers. To do this, employees would have to take their case through all instances, which costs time and nerves.
The LAG Lower Saxony has decided in the specific case of the two ex-VW managers and dismissed the lawsuits, but a final clarification is still pending as the appeal was allowed. Only a decision by Germany’s highest labor court could bindingly determine how far the protection of whistleblowers actually extends.
Documentation & Co.: What HR can take from the case
The case shows how quickly previous personnel decisions can subsequently become the subject of legal disputes. At least if there is already a corresponding protective law or another principle at the time of the discrimination. To prevent such conflicts, HR can take some measures. In a LinkedIn post, lawyer Dirk Libuda highlighted several consequences for HR practice.
Although he does not refer to the VW case, he does refer to a ruling by the Koblenz Labor Court (Az. 6 Ca 2023/25, judgment of November 20, 2025), which also dealt with the Whistleblower Protection Act. It made it clear that the reversal of the burden of proof under the Whistleblower Protection Act does not automatically apply as soon as termination is given following a report. Rather, the employee must first explain specific circumstances that make a connection between reporting and discrimination plausible.
In his opinion, documentation plays a key role. It is important that personnel decisions can be comprehensibly justified. This means recording them in such a way that they can be checked afterwards. This makes it much easier to classify and refute allegations in the event of a dispute. According to Libuda, the timing of the documentation is particularly important: it should not only begin after a report or even at the beginning of a dispute, but should take place in advance and be continued continuously. This is comparable to equal pay cases: unequal treatment in terms of salary is generally not prohibited. But they must be justified.
A second relevant learning for HR departments is the clear communication of reporting channels, because not every report automatically triggers protection. Anyone who passes on information outside of the designated reporting channels is generally not protected by the law, as the Braunschweig Labor Court confirmed in a ruling on February 25, 2026. For HR, this means, firstly, clearly communicating which reporting channels are protected by the law. Secondly, they should inform their employees about where and how they can legally submit information. This is the only way for whistleblowers and companies to later understand whether a report actually falls under the law.
Info
Whistleblower Protection Act
The Whistleblower Protection Act (HinSchG) has been in force since July 2, 2023 and implements the EU Whistleblower Directive into German law. It is intended to protect people from reprisals who point out grievances or legal violations in a professional context. Companies with more than 50 employees must set up internal reporting points through which reports can be submitted. In addition to internal ones, external government reporting bodies such as the Federal Office of Justice (BfJ) are also possible. Companies that do not have a whistleblower protection system must expect fines.
The typical areas of application of the HinSchG include:
- Crimes: Fraud, theft and embezzlement, corruption, bribery
- Violations subject to fines: Failure to comply with occupational health and safety regulations, violations of environmental law, data protection violations
- Violations of national and EU protection regulations: Consumer protection, radiation protection law
Mara Marx is a volunteer at Human Resources.
