Whistleblower protection requires a designated reporting channel
By judgments dated 29 May 2026 in two proceedings, the Landesarbeitsgericht Niedersachsen (Lower Saxony Higher Labour Court) ruled that not every internal disclosure of information about possible regulatory violations constitutes a protected report under the Hinweisgeberschutzgesetz (HinSchG, German Whistleblower Protection Act). According to the decision, the decisive factor is in particular whether the employees used a reporting channel provided for by law.
The decisions concern the proceedings 17 SLa 618/25 and 17 SLa 619/25. The court of first instance was the Arbeitsgericht Braunschweig (Braunschweig Labour Court); for one of the proceedings, 6 Ca 303/24 is cited as the first-instance case reference. The judgments of the Landesarbeitsgericht are not final, as an appeal on points of law to the Bundesarbeitsgericht (Federal Labour Court) was allowed; in one proceeding, the appeal on points of law is pending under case reference 8 AZR 114/26.
Facts of the proceedings before the LAG Niedersachsen
Claimants from the upper management circle
The two claimants are employed by the defendant automobile manufacturer as members of the Upper Management Circle. In media reports, the legal dispute is portrayed as whistleblower proceedings against a major German automotive group. In view of the fact that the proceedings are not final and the factual classifications are disputed, caution is required with regard to the alleged breaches of duty.
According to the claimants, their reports concerned, among other things, possible regulatory violations in connection with material data sheets and health risks. The reporting specifically mentioned substances such as benzene, styrene and formaldehyde in high roofs of certain vehicle models, as well as the allegation of incomplete material data sheets.
Internal and external reports between 2022 and 2024
The claimants submitted that, between the end of 2022 and mid-2024, they had reported internally to superiors and members of the management board, and externally to public authorities, about possible regulatory violations. The external report is said to have been made in the summer of 2024 via the claimants’ legal representative, in particular to the Bundesamt für Justiz (Federal Office of Justice).
The claimants argued that the defendant employer had withheld from them a promotion and higher remuneration in response. In addition, their organisational unit was later dissolved. According to their account, they were also completely excluded from the employer’s SAP system, whereupon they brought an action before the Arbeitsgericht Braunschweig.
Claims asserted
The claimants sought damages and compensation for pain and suffering. According to media reports, the claims asserted amounted in total to around EUR 7.5 million.
The Arbeitsgericht Braunschweig had already dismissed the actions. According to the reported reasoning, there was, among other things, a lack of substantiation of a demonstrable loss attributable to retaliation, as well as a lack of an internal report provided for by law.
Decision of the Landesarbeitsgericht Niedersachsen
Appeals unsuccessful
The 17th Chamber of the Landesarbeitsgericht Niedersachsen heard the appeals on 24 April 2026. The decisions were handed down on 29 May 2026 at the Fachgerichtszentrum Hannover (Hanover Specialist Courts Centre) and subsequently reported nationwide.
The Landesarbeitsgericht dismissed the claimants’ appeals in both proceedings. In doing so, it ultimately upheld the decisions of the Arbeitsgericht Braunschweig dismissing the claims.
Temporal scope of application of the Hinweisgeberschutzgesetz
The court first distinguished according to whether the respective reports had been made before or after the Hinweisgeberschutzgesetz entered into force on 2 July 2023. In the court’s view, reports prior to that date did not fall within the temporal scope of application of the Act, regardless of whether an internal whistleblowing system existed at the defendant.
At the same time, the Landesarbeitsgericht clarified that employees were not without protection even before the Hinweisgeberschutzgesetz entered into force. After expiry of the implementation period for Directive (EU) 2019/1937, an interpretation in conformity with the Directive of § 241(2) BGB (German Civil Code) and § 612a BGB could, in particular, be considered.
Internal communications to superiors and the management board
For the reports made after 2 July 2023, the Landesarbeitsgericht likewise denied protection under the Hinweisgeberschutzgesetz insofar as the claimants had passed on their information to superiors or members of the management board. According to the decision, these bodies were not internal reporting offices within the meaning of § 12(1) sentence 1 HinSchG.
The court did not classify these communications as protected reports under the Hinweisgeberschutzgesetz. Rather, it regarded them as fulfilment of the claimants’ contractual reporting and information duties under their employment contracts.
Protection against retaliation under § 36 HinSchG
Refusal of promotion may, in principle, be covered
The Landesarbeitsgericht did not dispute that the refusal of a promotion can, in principle, constitute retaliation within the meaning of the Hinweisgeberschutzgesetz. However, the decisive factor remains whether the statutory requirements have been substantiated in the specific case.
According to the decision, the presumption rule under § 36(2) HinSchG is not triggered merely by asserting that one has suffered a professional disadvantage after a communication. Rather, it is necessary for the reporting person to demonstrate that there was an entitlement to promotion or at least a legitimate expectation of promotion, and that the disadvantage was causally connected to this.
Substantiation not sufficient in the court’s view
In the view of the Landesarbeitsgericht, the decided cases lacked sufficient substantiation of these requirements. The statutory presumption that an occupational disadvantage constituted retaliation for a report or disclosure therefore did not apply.
The court also saw no sufficiently substantiated breach of the Hinweisgeberschutzgesetz with regard to the external reports. It is true that these reports were made to a reporting office provided for by law. According to the decision, however, this was not sufficient to establish the claims asserted.
Causation of the later external report
The Landesarbeitsgericht also took the chronology into account. A report made only in July 2024 could not be causal for an alleged refusal of promotion which, according to the submissions, was said to have existed since July 2023.
Finally, the court also denied a claim for compensation for pain and suffering. It did not consider that the required infringement of personality rights existed.
Significance of the decisions for whistleblowers and companies
Distinction between reporting duty and protected report
The judgments make clear that reports by employees about possible regulatory violations do not automatically fall under the special protection of the Hinweisgeberschutzgesetz. Internal information may also merely be an expression of contractual reporting and information duties under the employment contract.
According to the decision, protection under the Hinweisgeberschutzgesetz depends materially on whether the legally designated reporting channels were used. These include internal reporting offices within the meaning of the Act as well as external reporting offices, but not, without more, any superiors or corporate body members.
Relevant key statements of the LAG Niedersachsen
- Reports made before 2 July 2023 do not fall within the temporal scope of application of the Hinweisgeberschutzgesetz.
- Communications to superiors or members of the management board are not, for that reason alone, reports under the Hinweisgeberschutzgesetz.
- The special protection against retaliation generally requires the use of a reporting channel provided for by law.
- An alleged occupational disadvantage does not trigger the presumption under § 36(2) HinSchG without further substantiation.
- For claims for damages and compensation for pain and suffering, the respective requirements for the claim must be substantiated in the specific case.
The decisions therefore concern not only the handling of whistleblowing systems, but also the documentation of personnel-related processes. At the same time, they show that the scope of the Hinweisgeberschutzgesetz is limited by the statutory reporting channels.
Procedural status and open questions
As the appeal on points of law to the Bundesarbeitsgericht was allowed and a case reference at the Bundesarbeitsgericht has already been specified in one proceeding, the decisions are not final. A definitive clarification by the highest court is therefore still pending.
Until a decision by the Bundesarbeitsgericht, it remains particularly important how the distinction between a contractual reporting duty under the employment contract and a protected report under the Hinweisgeberschutzgesetz is to be drawn in comparable situations. The application of the presumption rule under § 36(2) HinSchG in labour court practice may likewise be further specified.
Frequently asked questions
LAG Niedersachsen 17 SLa 618/25 and 17 SLa 619/25: When does the Hinweisgeberschutzgesetz protect a report?
According to the judgments, the special protection generally requires employees to use an internal or external reporting channel provided for by law. A communication to superiors or members of the management board is therefore not sufficient without more.
§ 36(2) HinSchG: Is an alleged disadvantage sufficient for the presumption of retaliation?
In the view of the Landesarbeitsgericht, the mere assertion of an occupational disadvantage is not sufficient. The reporting person must, among other things, demonstrate that there was an entitlement to promotion or at least a legitimate expectation of promotion.
What practical consequences do the LAG judgments on internal reports at an automobile manufacturer have?
The decisions show that internal information about possible regulatory violations must be distinguished from protected reports under the Hinweisgeberschutzgesetz. For companies and employees, it may therefore be decisive which body was contacted and whether it is designated as a reporting office within the meaning of the Act.
Assessment by MTR Legal Rechtsanwälte
The decisions of the Landesarbeitsgericht Niedersachsen make clear that the Hinweisgeberschutzgesetz imposes precise requirements on special protection against retaliation in the employment relationship. At the same time, given that the appeal on points of law has been allowed, it remains to be seen whether and to what extent the Bundesarbeitsgericht will confirm this line.
Where there are questions concerning whistleblower protection, contractual duties under employment contracts or alleged disadvantages in connection with reports, careful legal assessment may be required. MTR Legal Rechtsanwälte advises companies, investors and high-net-worth private individuals in employment law; further information can be found at Legal advice in employment law.
