Greater protections for whistleblowers

Monday 23 May, 2022

Whistleblowing can be a highly effective way to expose wrongdoing and coverups in both the public and private sectors. However, whistleblowing can come at a significant cost for the whistle-blower, putting their job, and potentially their career, at risk. Parliament has just passed a law increasing protections for whistle-blowers who make a protected disclosure.

What is a protected disclosure?

The new Protected Disclosures Act 2022 protects employees, contractors, directors, and volunteers making a protected disclosure about their organisation. A disclosure is protected if the person making it has reasonable grounds to believe that there has been serious wrongdoing in the organisation, provided they are not acting in bad faith by making the disclosure. Serious wrongdoing includes:

• Committing an offence
• Serious risks to health and safety, or to the environment
• Serious interference with upholding the law
• Corrupt use of public funds or resources
• Gross mismanagement or unlawful discrimination by the public sector.

How to make and receive disclosures

The disclosure must be made either:

• Following internal disclosure procedures, or
• To the head or deputy head of the organisation
• To an appropriate authority.

A person receiving a disclosure has 20 working days to:

• Acknowledge the date the disclosure was made
• Consider whether the disclosure warrants investigation
• Deal with the disclosure by:

• Investigating it,
• Addressing it,
• Referring it to an appropriate authority, or
• Deciding no action is required

•  Inform the whistle-blower what is being done and why.

How are whistle-blowers protected?

A person receiving a disclosure must do their best to protect the whistle-blower’s identity unless they consent to being identified or identification is necessary for effective investigation, preventing serious health and safety risks, natural justice, or for an enforcement investigation. An employer must not retaliate against an employee who has made, or is going to make, a protected disclosure, otherwise the employee will have grounds for a personal grievance. Retaliation includes dismissal, detriment, or disadvantage, or withholding benefits. If the whistle-blower is not an employee, they cannot be treated less favourably because of the disclosure. These protections apply even if the whistle-blower was mistaken and there was no serious wrongdoing.

What else do you need to know?

Organisations cannot contract out of this Act or try to prevent protected disclosures. Interestingly, the Government has chosen not to protect disclosure to media organisations, so whistle-blowers are only protected if the disclosure is within the organisation or to an appropriate authority. The Act comes into force on 1 July 2022.

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