New Protected Disclosures Legislation – What Employers Need to Know

Whistleblowing is formally known as making a protected disclosure. The laws around whistleblowing and the protections afforded to individuals when making such disclosures have recently been subject to legislative reform.

The Protected Disclosures (Protection of Whistleblowers) Act 2022 (‘the New Act’) will come into force on 1 July 2022, replacing the Protected Disclosures Act 2000 (‘the 2000 Act’). It is important employers familiarise themselves with the changes under the New Act.

Purpose of the New Act

The New Act builds on the 2000 Act’s purpose of assisting in disclosing and investigating serious wrongdoing in the workplace and providing protection for employees and workers who report concerns. The New Act aims to make the disclosure process more straightforward, broadens and clarifies the grounds under which disclosures can be made, and provides increased protection for disclosers.

We summarise the main changes affecting employers below.

What is serious wrongdoing?

The New Act covers serious wrongdoing occurring in or committed by any public or private organisation (including business, government agencies, and non-government associations) and protects anyone who has worked or volunteered in them who raises a concern about potential serious wrongdoing.

Serious wrongdoing, as defined in the New Act, includes any of the following behaviours:

  • a criminal offence;
  • a serious risk to public health or safety, the health and safety of any person, or the environment;
  • a serious risk to the maintenance of law (including the investigation of offences); and/or
  • misuse of public funds or resources (relating to misuse in a public or private organisation, or misuse of public authority by non-government organisations carrying out public functions).

A key change for employers to note is that serious wrongdoing now expressly includes behaviour that is a serious risk to the health and safety of any person. This would include workplace harassment and bullying, as well as physical risks.

Greater protection for disclosers

The New Act clarifies the key steps a person receiving a disclosure should take. In particular, the New Act creates a positive obligation on the person receiving the disclosure to inform the discloser of what they have done, or are doing, to deal with the matter and provide reasons. This includes notifying the discloser if they determine no action is required. The organisation is required to inform the discloser if it releases information about the discloser (only in accordance with the provisions of the New Act).

Under the 2000 Act, the ability to report straight to an appropriate authority was only available if the alleged wrongdoing concerned the head of the discloser’s own organisation, or in an exceptional or urgent situation. The New Act allows disclosers to report serious wrongdoing to an appropriate authority, without first needing to raise concerns within their own organisation. The New Act lists examples of appropriate authorities to report to about different types of concerns. For example, if concerns are related to anti-competitive conduct, disclosers are advised to report their concerns to the Commerce Commission.

Obligation not to retaliate against the discloser or treat them less favourably

Employers must not retaliate against an employee who makes a disclosure. Previously, the term ‘retaliate’ was not defined in legislation, but the New Act now defines retaliation to include any of the following circumstances:

  • dismissing an employee;
  • not offering the employee the same terms of employment, conditions of work or opportunities as other similar employees in the organisation;
  • causing detriment to the employee (including the detrimental effect on the employee’s employment, job performance or job satisfaction); and/or
  • retiring the employee or causing the employee to retire or resign.

The New Act also stipulates a person must not treat another less favourably because of a protected disclosure. This means a person (A) cannot treat another person (B) less favourably than A would treat other persons in the same circumstances because B has done any of the following:

  • made or intends to make a protected disclosure;
  • encouraged someone else to make a protected disclosure; or
  • provided information in support of a protected disclosure.

This obligation covers a broader range of individuals, including independent contractors and volunteers, as well as individuals who have encouraged someone to make a disclosure or provided information in support of a protected disclosure.

Effect on employer’s privacy obligations

The New Act will amend the Privacy Act 2020 to assist in the protection of the identity of whistleblowers. If information is released that may identify the discloser, it could constitute a breach of the Privacy Act. This means employers must use their best endeavours to keep information that might identify the discloser confidential.

Our advice to employers

Employers should review their current whistleblowing policies and protocols, in light of the upcoming legislative change. We are happy to provide individual and tailored advice to your specific business needs.

You can read the full Protected Disclosures (Protection of Whistleblowers) Bill here.