LAG Lower Saxony Dismisses Damages Claims of Two Whistleblowers – Appeal to the Federal Labour Court Permitted

LAG Lower Saxony, Judgments of 29 May 2026, Case Nos.: 17 SLa 618/25 and 17 SLa 619/25 (press release only to date; not yet final)

Facts

The Lower Saxony Higher Labour Court (Landesarbeitsgericht Niedersachsen) has dismissed the appeals of two managers who had claimed damages and compensation for pain and suffering from their employer on the basis of alleged violations of the Whistleblower Protection Act (Hinweisgeberschutzgesetz – HinSchG). According to consistent press reports, the claimants are employed by the respondent, a major Lower Saxony car manufacturer – reportedly Volkswagen – as members of the Senior Management Circle (Oberer Managementkreis – OMK). They assert that no action was taken in response to various internal reports of compliance violations; instead, they allege that they suffered reprisals, in particular disadvantages in promotion decisions. They take the view that the respondent violated the HinSchG and owes them damages and compensation for pain and suffering. According to press reports, the claims amounted to approximately four million euros per claimant, derived from lost income following an expected promotion through to retirement, lost occupational pension entitlements, and compensation for pain and suffering.

The Braunschweig Labour Court (Arbeitsgericht Braunschweig) had dismissed the claims on the grounds that no damage attributable to a reprisal had been demonstrated and that, moreover, the internal notification required by law was lacking.

Decision

The LAG Lower Saxony dismissed the appeals by decisions announced on 29 May 2026. A claim under the HinSchG did not exist: the claimants’ internal notifications did not fall within the scope of the HinSchG, as they had been made before the Act entered into force. Furthermore, the claimants had not addressed the internal reporting channels but had merely informed their superiors in fulfilment of their contractual duties. Reprisals had not been sufficiently demonstrated, and the claimants had failed to establish a causal link to any damage. The requirements for a claim for damages or compensation for pain and suffering under general civil law provisions were likewise not met. The appeal division granted leave to appeal (Revision) to the Federal Labour Court (Bundesarbeitsgericht).

Practical Note

To date, only the court’s press release is available; the full text of the decision and its reasoning have not yet been published. The judgment is, moreover, not yet final, as leave to appeal to the Federal Labour Court has been expressly granted.

The combination of the broad concept of “reprisal” and the reversal of the burden of proof under section 36 HinSchG has given rise to employer concerns that, in future, virtually any adverse personnel measure taken after a report could be classified as a reprisal and trigger damages claims. HR professionals are therefore consistently advised to document the objective reasons for employment law measures with particular care.

At the same time, it is apparent that much remains unresolved under the still relatively new HinSchG. The present decision is part of a line of lower court case law that restricts the scope of the HinSchG: for example, the Hamm Labour Court (Arbeitsgericht Hamm) held that allegations raised in a mere personnel meeting with the employer are not covered by the protections of sections 35 to 37 HinSchG, because no report had been made through an internal or external reporting channel. Equally, the reversal of the burden of proof does not apply automatically merely because a measure is taken after a report has been made (cf. Arbeitsgericht Hamm, judgment of 16 February 2024, Case No.: 2 Ca 1229/23).

Reliable conclusions, particularly regarding the temporal scope of the HinSchG and the requirements for a protected report, will therefore only be possible once the full reasoning is available or a definitive ruling by the highest court has been issued. For more far-reaching clarifications, a different case that falls more clearly within the scope of the HinSchG will in all probability be required.