HinSchG: Handling Intentionally False Reports

1. Section 38 HinSchG Requirements

A claim arises only for "intentional or grossly negligent" false reports. The threshold for "intentional" is very high; courts demand clear evidence of bad faith.

2. Employer Burden of Proof

The employer must prove intent. Useful indicators: demonstrable lies, personal motive, suspicious timing relative to a workplace conflict, contradicting documentary evidence.

3. Damages Quantum

Courts award damages based on the reputational harm to the accused plus investigation costs incurred by the employer. Median: 5,000-25,000 EUR.

4. Reputation Protection of the Accused

Section 8 HinSchG confidentiality also applies to the accused. After resolution, prevent stigmatization through clear internal communication and HR file management.

5. Rehabilitation

If the report is conclusively shown to be false, take active rehabilitation steps: explicit communication to colleagues, role clarification, and corrective performance review entries.

6. Disciplinary Action Against False Reporters

Possible, but cautious. A "false" reporter can still claim HinSchG protection if "reasonable grounds" for suspicion existed at the time of reporting (Section 33 HinSchG). Document the assessment carefully.

7. Criminal Complaint Path

Where defamation is provable, a criminal complaint under Section 187 of the German Criminal Code (StGB, "Verleumdung") is available. The evidence threshold is strict and rarely met in workplace contexts.

Summary

Section 38 HinSchG damages claims succeed only when intentional bad faith is documented. In practice, most "false" reports turn out to be honestly held but unsubstantiated suspicions — protected by HinSchG. Focus on reputation protection of the accused and balanced rehabilitation rather than aggressive countersuits.

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