The Benefit of a Lawyer of Trust (Ombudsman): Anonymity
Preventing corruption and other white-collar crimes needs to be a priority within companies. As whistleblowing has become more prominent, companies need to ensure that secure, effective, and confidential grievance systems are in place that employees, managers, and other parties can trust. Working with a lawyer of trust (ombudsman) allows an external party to play an essential role in the structure. Working closely with a lawyer of trust offers parties who uncover such issues to report to a person outside of the company and guarantees them anonymity. In turn, employees have fewer fears about reporting alleged corruption, and they are fully aware of their legal rights and responsibilities with the information they possess. Should the information provided be accurate and corruption is discovered, companies can then take appropriate actions. Reacting to discoveries of corrupt or illegal behaviour allows companies to enact and implement compliance policies transparently.
Anonymity is central to the lawyer of trust (ombudsman) model, as potential whistleblowers have a person they can talk to in confidence. Without this model, those who discover apparent corruption may be faced with the choice of bringing this information to the public or reporting it internally. The disadvantage with internal reporting may revolve around the person involved in the alleged activity, as their position within the company may enable them to have power over the reporting process. Whistleblowers looking to report to the public do so, knowing that it may damage their prospects within the company and may cause reputational damage to the enterprise. If the information is not correct, they may even face criminal prosecution themselves.
The disadvantages inherent in these two options provide the whistleblower with two further options: anonymously reporting the information internally and not reporting what they have uncovered. Not reporting the information allows the corruption or other matter to continue or may lead to another whistleblower possibly going forward to the public in the future. In contrast, anonymous reports prevent follow up questions. Without the opportunity to follow up with the individual, companies can be left where they do not have the required evidence, or they may be missing some critical information. The lawyer of trust (ombudsman) allows companies to have a system that negates these disadvantages.
Protection of Whistleblowers: Legal Knowledge
For potential whistleblowers, the lawyer of trust (ombudsman) role has the benefit that they are advised by an expert in German criminal and whistleblowing law. German law regarding whistleblowing can be complicated as issues such as data protection, the employee’s responsibilities towards the company and the need to protect trade secrets (§ 4(2), (3) GeschGehG) may all come into conflict. The implementation of the EU Whistleblower Directive should streamline the process but even then, potential whistleblowers should look for professional advice before taking steps to inform the public. This can be a complicated matter in cases where your firm does not have a lawyer of trust (ombudsman) role established.
Acting without knowing your legal responsibilities can bring criminal persecution, as for example, § 203 StGB contains a criminal offence for the disclosure of business secrets. Although under § 612a German Civil Code (Bürgerliches Gesetzbuch – BGB) employees are protected by the general prohibition of victimisation, this protection applies in matters where the whistleblower acted legally. Therefore, without possessing the required legal knowledge in advance, whistleblowers can put themselves into a difficult position.
Corporate Compliance System
For companies, working with a lawyer of trust (ombudsman) clearly demonstrates the value they place in legal compliance. Putting weight in compliance shows employees, investors and the broader public that your company is trustworthy with dealing with allegations of corruption, fraud and other criminal activity. When companies receive information from the lawyer of trust (ombudsman), they can act knowing that some evidence has been uncovered and that they should take the matter seriously. As a lawyer of trust, employees can approach the ombudsman with specific instructions regarding when to contact the company. When they have expressly asked the ombudsman to approach the company, it is clear that the company needs to be aware of the information that the employee has discovered.
By protecting the whistleblower and providing them with anonymity, the lawyer of trust can act as a go-between for them with the company. This role allows the employee to act confidently by providing the lawyer with the evidence needed without fear that it will end up in the wrong hands. Our lawyers will coordinate with your company’s management to draft practical guidelines around this issue. Adopting such policies transparently and unambiguously demonstrates to employees, investors and other third parties that the company is compliant with its legal responsibilities.