New Protected Disclosures Act a reminder for employers to ensure they have solid whistleblowing policies in place
The Protected Disclosures (Protection of Whistleblowers) Act (“the Act”) comes into effect from 1 July 2022, replacing the Protected Disclosures Act 2000 (“the 2000 Act”).
The aim of the Act is to simplify the provisions of the 2000 Act so that it is more accessible while continuing to facilitate the disclosure and investigation of serious wrongdoing in the workplace and provide protection for people who “blow the whistle” on such concerns.
Employers should familiarise themselves with the Act and review their organisation’s whistleblowing policies to ensure those policies comply with the Act.
What is a ‘protected disclosure’?
A protected disclosure under the Act is when the discloser (or whistle-blower) believes on reasonable grounds that there is, or has been serious wrongdoing in or by their organisation, and they disclose such serious wrongdoing in accordance with the Act.
who is a ‘discloser’?
a ‘discloser’ includes current and former employees, independent contractors and volunteers. it also includes individuals who have encouraged a discloser or provided information in support of a protected disclosure.
what is ‘serious wrongdoing’?
importantly for employers, this definition now expressly includes behaviour that is a serious risk to the health and safety of any individual (including workplace harassment and bullying, as well as physical risks).
What should the receiver of a protected disclosure do?
Within 20 working days of receiving a protected disclosure, the recipient should:
- Inform the discloser that they have received the disclosure on a certain date;
- Consider the disclosure and whether it warrants investigation;
- Check whether the disclosure has been made elsewhere;
- Deal with the matter by either;
- Investigating the disclosure;
- Addressing any serious wrongdoing by acting or recommending action;
- Referring the disclosure to an appropriate authority; or
- Deciding that no action is required (and inform the discloser with reasons if this is the case); and
5. Inform the discloser (with reasons) about what the receiver has done or is doing to deal with the matter.
Private organisations must follow these steps when a protected disclosure is received.
What protections are offered to disclosers?
The Act provides protections for whistle-blowers to encourage individuals to speak out about serious wrongdoing, even if such wrongdoing is not proven. Those protections include:
Confidentiality and privacy
Every receiver of a protected disclosure must use their best endeavours to keep confidential information that might identify the discloser (unless the discloser consents to the release of the identifying information or there are reasonable grounds for releasing such information). Where information is released that will identify a discloser, they must be informed that this has happened.
The Act also provides enhanced protections for disclosers under the Privacy Act 2020, meaning that the release of information that might identify a discloser can amount to an interference with privacy, even if no harm eventuates.
No retaliation or victimisation
An employer must not retaliate (or threaten to retaliate) against a discloser who is an employee or treat them less favourably because of a protected disclosure. ‘Retaliation’, includes dismissing the employee, treating the employee less favourably than other similar employees, or subjecting the employee to any detriment or disadvantage.
Immunity from legal proceedings
Neither a discloser who makes a protected disclosure nor a receiver who refers a protected disclosure is liable to face any civil, criminal, or disciplinary proceeding because of making or referring the disclosure.
Conclusion
The Act is a means of facilitating and protecting individuals (including employees) who speak out against others’ misconduct. The Act cannot be contracted out of and employers may face liability under both the Employment Relations Act 2000 and the Privacy Act 2020 if they fail to comply with the Act’s provisions.
Contact Jordan Todd or Lucy Aitken to discuss your organisation’s whistleblowing policies.