Enactment of the Protected Disclosures (Protection of Whistleblowers Act) 2022 – what does this mean for whistleblowers and organisations?
The Protected Disclosures (Protection of Whistleblowers) Act 2022 (“Act”) comes into force today, 1 July 2022.
The Act replaces the Protected Disclosures Act 2000, and aims to further facilitate the disclosure of “serious wrongdoing” in public and private organisations. See our previous article discussing this here.
Under the Act, whistleblowers are called “disclosers” and can include individuals such as employees, contractors, volunteers and other individuals working within the organisation.
A disclosure must be about “serious wrongdoing”, a term adopted from the previous legislation, but expanded to include behaviours such as those creating a serious health and safety risk (which could include harassment or bullying), and acts or omissions amounting to unlawful, corrupt, or irregular private sector use of public funds and services.
In making a protected disclosure, in good faith and in accordance with the Act, the discloser will be protected from civil, criminal, and administrative liability. The organisation must not retaliate against or treat the discloser less favourably as a result of the disclosure. This includes employers not dismissing or taking other adverse action against employee disclosers (which will be a new and express ground for a personal grievance under the Employment Relations Act 2000).
The discloser’s identity must also be kept confidential unless certain exceptions apply, such as the disclosure being critical to conducting an effective investigation or preventing serious risk to public health, safety or the environment.
The Act applies to public and private sector organisations. However, it only imposes a mandatory obligation on public sector organisations to implement whistleblowing policies. While that means private sector organisations do not, by law, have to implement/update whistleblowing policies, there is a strong case for doing so, to encourage staff to report internally at the first instance, rather than leave them with external agencies, for example, the Ombudsman or NZ Police, being the first port of call for a complaint.
There is no doubt that the new Act strengthens the law in regard to the protection of whistleblowers and encourages ”speaking up”. But what about the increased risk it poses for organisations?
For example, the broader definition of serious wrongdoing to encompass bullying and harassment raises questions around employment investigation processes. Investigations into bullying and harassment in the workplace are governed by principles of natural justice, including the ability to know the identity of the accuser and details of the allegations. This is likely to become a difficult process to manage, where allegations of this type are made as protected disclosures.
In short, implementing and/or updating whistleblowing policies ought to be front of mind for organisations in light of this updated legislation.
For more information
If you would like to understand more about the new Act, how this could impact you/your organisation, and/or consideration of existing or new policies in response to this legislation, please do not hesitate to get in contact. For more information, feel free to contact 04 472 0020.
See more of our employment law articles here.