02. November 2023
// Inside
The respected compliance expert Dr Carsten Thiel von Herff is now the attorney of trust for the national and international companies of the Stiegelmeyer Group. This means that our company is implementing the requirements of the new German Whistleblower Protection Act. In an interview with the FORUM team, the Bielefeld lawyer explains his tasks, describes typical cases and explains how potential whistleblowers can contact him.
Dr Thiel von Herff, please introduce yourself briefly.
I have been working as a lawyer for over 20 years and have been involved in the field of anti-corruption, which is also called compliance today, since 2009. I deal with everything that should not go wrong in a company and yet sometimes does. These are not always the big corruption cases or collusion with competitors, but very often personnel issues. I have several perspectives on this: on the one hand as an independent ombudsman and attorney of trust, and on the other hand as an advisor to companies on questions of organisation or certain cases and processes. My law firm in Bielefeld consists of two other lawyers and two employees. My team also deals with sports law. We look after football clubs and the German Football League – for me that is where profession and passion meet.
How did the cooperation between you and the Stiegelmeyer Group come about?
The background to this is the legal obligation to introduce a whistleblowing system, which has been in place since 1 July 2023. At the moment, this only applies to companies with more than 250 employees; at the beginning of the new year, this threshold will be lowered to 50 employees. Companies can fulfil this task by purely technical means, e.g. with an electronic whistleblower platform. But Stiegelmeyer has opted for an attorney of trust as a personal contact. From my point of view, this is of course the right decision (laughs).
Is the Whistleblower Protection Act based on European or German law?
The basis is an EU directive that should have been implemented in 2021. However, the German legislature often needs more time to cast such requirements into national law. As an attorney of trust, I look after all national and international subsidiaries of the Stiegelmeyer Group. In the meantime, there are corresponding national laws in all EU countries. The way I conduct the whistleblower management, we meet the legal requirements in all of these countries. However, our law firm also looks after companies worldwide and handles cases in the USA, Russia or China, for example.
What are the purposes of the Whistleblower Protection Act?
It is a way for employees and external parties to provide information about potential violations in a company. Violations can be violations of legal and internal rules, e.g. the company's own Code of Conduct. And these internal rules are often very broad - they are about respect, tolerance and fair treatment. In addition to the tips, there is also the possibility of seeking advice from me. If one is unsure how to act in a particular case, I can often use my many years of experience to empathise with the situation and say: "I would do it this way" or "Legally, you must consider the following". On the other hand, it is not possible for me to represent a whistleblower myself as a lawyer, for example in labour law proceedings. I always remain independent and a neutral mediator.
How do you overcome the language barrier in international cases, e.g. when you receive a long complaint in Finnish?
I have various channels through which tips can be received. The electronic platform on my website is now available in over 30 languages, so anyone can easily enter information in their native language. If someone wants to speak to me by phone, I can call in a sworn simultaneous interpreter. To do this, I work with three translation agencies. I just have to manage the initial contact with the reporting party in order to arrange an appointment with the interpreter. So far, we have always managed to do this - in the case of a Finnish caller, we could probably communicate briefly in English. On the other hand, there are sometimes unforeseen challenges: in Germany, for example, it can be much more difficult to organise a translator for Norwegian than for Chinese, because everyone assumes that Norwegians know English anyway. If a Stiegelmeyer employee from Poland contacts us, we have a Polish speaking employee in our office.
What kind of tips do you typically receive and how do you react to them?
The heading for me is always: Can there be a violation and is this violation relevant? If someone calls and says: "I always have trouble with my colleague", then maybe they are a bit too sensitive, but there could also be systematic bullying. The question for me is: is the tip "substantiated", i.e. can there be something to it? If a hard-core corruption case is reported to me with documents, I have evidence right from the start, if it's about an argument in the kitchen, it's often testimony against testimony. And that's why I listen very carefully. For example, I once had the case of an employee who complained that her boss always parked backwards in the car park, even though it was only allowed to park forwards. I first asked carefully: "Is that so bad?" It then turned out that the car park was only the tip of the iceberg and that she had been upset about much more. Nevertheless, by no means does every tip leads to an investigation that I forward to the company. Often, I can already solve cases with a conversation or some advice.
But how do you proceed if there is a really serious tip? Can you give an example?
Imagine the following case: An employee reports that his supervisor regularly submits travel expense claims that are too high. This is legally a case of fraud. I would pass this tip on to the company and, in the end, communicate the result to the whistleblower. But there are hurdles on this path. If, in our specific case, the boss were confronted directly with the accusation, she would immediately know that it originated from her employee. However, one of my main tasks is to protect the identity of the whistleblower. Therefore, I would not forward the tip for direct investigation, but rather feed it as special knowledge into the company's next regular audit. As an external lawyer with confidentiality privileges, I can do this. Then the fraud comes to light when travel expenses are checked in several departments without the company even becoming aware that there has been a specific tip.
Are there any offences that are so serious that you would have to pursue charges after receiving a tip?
In fact, there is a catalogue of serious crimes for which every citizen would have a duty to report. These include, for example, a planned murder or the instigation of a hostile war. Such things hardly ever happen in practice - fortunately. Otherwise, it is always at the discretion of the company to file a police report. In cases of fraud or embezzlement, I tend to advise against filing a police report and to seek an agreement with the employee. There are also cases in which I find that the whistleblower has committed a crime themselves. In such cases, I don't let anyone walk into an open knife, but rather explain the situation and say: "Sleep on it for a night and then decide whether I should really forward the tip. This is very important: I am a safe haven for whistleblowers. They can turn to me without hesitation and with confidence. I am by no means a "spy" for the company who "snitches" on anything. Would that be the case, I could close my practice tomorrow.
You have already spoken about the many channels through which you can be reached. How should an employee or external person ideally go about contacting you?
We publish all our contact details on our website. The potential whistleblower can choose how to contact me. We have an online platform, which is a very simple form where you can type in your tip. I then receive a notification and look at the report. Likewise, people can send me a direct e-mail, a fax or a letter. People can call me and also arrange a personal meeting at a neutral location, e.g. in a café. From Germany, I primarily get calls.
Is it possible to report to you anonymously?
Yes, the legislature had not initially envisaged this, but has fortunately moved away from the impractical restriction. Whistleblowers can use my platform without giving their name. They receive an access number with the help of which they can continue to communicate with me anonymously. Likewise, they can write me an anonymous letter or call me with a concealed phone number. In fact, this happens very often. People call and say: "I trust you, but I still don't want to give my name." After ten minutes, they often do give it, but that doesn't have to be the case. To summarise again: Whistleblowers can contact me flexibly according to their wishes, and I respond as quickly as possible on their chosen channel.
After almost 15 years of dealing with the topic of compliance and around 7,000 tips, you are also a chronologist of the conditions in business life. Is there an upward or downward trend there?
Companies have become much better at dealing with employees and compliance issues. On the one hand, this is due to pressure from the legislature, but on the other hand, many appreciate the opportunities of personal tip management. If an employee reports a genuine offence to me, the company can deal with it calmly instead of having to deal with an investigation immediately. If a company publishes a new work policy and I receive five enquiries about it in one week, there could be an issue here that can easily be corrected. And finally, everyone is looking for qualified employees today and wants to present themselves attractively to the outside world. If there is dissatisfaction and concern, I can pick up on and pacify a lot through a personal conversation. Instead of giving a negative online rating, the employee then hopefully goes into the weekend in a better mood and tells his friends: "I have a good employer."
Thank you very much for the interesting conversation.
More about the law firm online: www.thielvonherff.de
Link to the online platform: report-tvh.com
