Significant changes are being made in New Zealand workplaces to better protect whistleblowers. The Protected Disclosures (Protection of Whistleblowers) Act 2022 is set to replace the Protected Disclosures Act 2000 from 1 July 2022.
The new Act has been a long time coming: a review in 2017 found that employers and whistleblowers had problems with:
- When the old Act applied, how to manage several concerns from the same employee, and how the old Act interacted with other legislation
- Fear that speaking up would expose a colleague or staff member to retaliation or mistreatment
- A lack of internal reporting processes, so employees did not know who to talk to about concerns
- Confusion over which external authority an employee should report to, and when they could make such reports.
The new Act is intended to make the rules easier to understand and use, and to offer better protection for those who speak up about serious wrongdoing in the workplace in both the public and private sectors.
Key changes:
- The new Protected Disclosures (Protection of Whistleblowers) Act 2022 simplifies the disclosure process, expands and clarifies the grounds under which protected disclosures can be made and enlarges the protection available to whistleblowers.
- The new Act now includes within the definition of “serious wrongdoing” acts or omissions which may cause a serious risk to the health and safety of any individual (which could include bullying and harassment).
- A person who discloses information in support of, or relating to, an existing protected disclosure, will also be entitled to the protection of the Act.
- The Act enables people to report serious wrongdoing directly to an appropriate authority at any time, without having to go through an internal process first.
- The new Act requires the receiver of a protected disclosure to use their best endeavours to keep any information that might identify the discloser confidential; provides immunity from civil, criminal and disciplinary proceedings for making the disclosure; and provides protection from retaliation by an employer.
- However, if a receiver does need to release identifying information about the discloser, in addition to the obligation to consult with the discloser before release of that information, the new Act imposes an obligation on the receiver to inform the discloser after releasing identifying information.
- If a receiver determines no action is necessary in respect of a disclosure, they are now required to inform the discloser of this decision and the reasons behind it.
- Finally, the Act clarifies that no agreement, contract, or internal procedure can prevent supporting information from being provided (for example, a confidential settlement or non-disclosure agreement).
It is important for businesses to be aware of the key changes and what tools are available to help navigate reporting wrongdoing and misconduct.
What does this mean for employers?
- Public sector employers are already required to have internal procedures in place for handling protected disclosures. These should be reviewed, as the new Act expands on and clarifies the required content of these procedures, including stating how the organisation will provide support to disclosers.
- Private sector employers are not required by law to establish internal procedures for handling protected disclosures, but as they are still required to comply with the Act, we recommend they also establish relevant internal procedures for any person wishing to report concerns about serious wrongdoing.
Our team is available to help navigate this new legislation and assist with processes and procedures in the workplace.