New legislation regarding protected disclosures is coming into force on 1 July 2022. The Protected Disclosures (Protection of Whistleblowers) Act 2022 will repeal and replace the current Protected Disclosures Act 2000. Government consultation on the Protected Disclosures Act 2000 had indicated weaknesses with and confusion around the current legislative regime, and that processes for disclosing wrongdoing were often non-existent or over-complicated.
The new Act is intended to make the legislative regime regarding protected disclosures easier to access, understand and use, and to give people confidence to speak up without fear of retaliation.
Some of the most important changes include the following:
- The definition of “serious wrongdoing” now includes any behaviour that is a serious risk to the health and safety of any individual.
- Disclosers can choose to make a protected disclosure to their organisation and/or an appropriate authority at any time (previously, disclosures could only be made to an appropriate authority in limited circumstances).
- There is a suggested process for an organisation or authority receiving a protected disclosure to follow in responding to it, and guidance that such a process should occur within 20 working days of receiving a protected disclosure.
- Where a receiving organisation or authority has decided that no action is required in respect of a disclosure, they are required to inform the discloser and provide reasons for the decision.
- There is greater clarification on what “retaliating” against an employee who has made a protected disclosure might entail. There are also new protections around victimisation of disclosers (and their relatives and associates).
- There are additional protections regarding identification of a discloser, including obligations to consult with a discloser before releasing information that might identify them and to inform the discloser after releasing identifying information. Disclosers can make use of protections under the Privacy Act 2020 if a receiving organisation or authority does not comply with its obligations of confidentiality in relation to their identity.
Implications for employers
Employers should familiarise themselves with the new obligations and requirements and consider whether any changes are necessary to any existing whistleblowing policies and procedures, or whether it is now time to implement a whistleblowing policy if there is not already one in place.
Employers should also take note of the expanded definition of “serious wrongdoing”, in particular, the expansion to include risks to the health and safety of an individual. This could include claims of harassment and bullying. This change only occurred at a late stage of the parliamentary process.
It is possible that the inclusion of risks to health and safety under the protected disclosures regime will cause complexity for employers trying to respond to such a disclosure, particularly where such claims overlap with their obligations under the Employment Relations Act 2000, Human Rights Act 1993 and/or the Health and Safety at Work Act 2015. In those circumstances, we would recommend seeking advice at an early stage.
