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Unanimous Judgement on Whistleblowing by the EHCR

On 21 July 2011, the European Court of Human Rights (ECHR) held a tentative unanimous judgement that there had been a violation of freedom of expression, pursuant to Article 10 of the European Convention on Human Rights, in the case of Heinisch v. Germany (Application no. 28274/08).

Ms. Heinisch, a German national, was employed as a geriatric nurse by a company specialising in health care and assistance to the elderly, which is majority-owned by a municipality. From January 2002, she worked in a nursing home for the elderly operated by the company, where patients were dependent on special assistance. Between January 2003 and October 2004, Ms. Heinisch and her colleagues regularly indicated to the management that they were overburdened due to staff shortage and thus had difficulties carrying out their duties; they further mentioned that services were not properly documented.

In November 2004, Ms. Heinisch, in a letter to the company’s management, pointed out that, due to the lack of staff, patients’ hygienic care could no longer be guaranteed. As the management rejected those accusations, Ms. Heinisch brought a criminal complaint through her counsel against the company in December 2004, alleging aggravated fraud. Ms. Heinisch also alleged that the company had systematically tried to cover up those problems and had urged staff to falsify service reports. The company, upon being notified of Ms. Heinisch complaint, subsequently dismissed her without notice.

Excerpt from the court's judgement:

It was undisputed between the parties that the criminal complaint lodged by Ms. Heinisch had to be regarded as whistle-blowing – the disclosure of deficiencies in enterprises or institutions by an employee. It was also common ground that her dismissal, as confirmed by the domestic courts, amounted to an interference with her right to freedom of expression.

The ECHR shared the German Government’s view that interference had been "prescribed by law”, as the German Civil Code allowed the termination of an employment contract with immediate effect by either party if a "compelling reason” rendered the continuation of the employment relationship unacceptable to the party giving notice.

At the same time, the ECHR noted that the information disclosed by Ms. Heinisch about the alleged deficiencies in the care provided had undeniably been of public interest.
There was also no evidence to establish that Ms. Heinisch had knowingly or frivolously reported incorrect information. Not only had she raised those concerns in her previous notifications to her employer but they had also been the subject of criticism by the health insurance fund’s medical review board. The ECHR had further no reasons to doubt that Ms. Heinisch acted in good faith.

Ms. Heinisch’s allegations had certainly been prejudicial to the company’s business reputation and commercial interests. However, the ECHR found that the public interest in being informed about shortcomings in the provision of institutional care for the elderly by a State-owned company was so important in a democratic society that it outweighed the interest in protecting the latter’s business reputation and interests. Finally, the heaviest sanction possible under labour law had been imposed on Ms. Heinisch. It could also have had a serious chilling effect on other employees of the company and could have discouraged them from reporting any shortcomings in institutional care. Ms. Heinisch’s dismissal without notice had therefore been a disproportionately severe sanction.