Whistle-blowers get (some) new legal protections

Print Friendly, PDF & Email

Protected Disclosures (Protection of Whistleblowers) Act 2022 sets out what will, and will not, be protected

In recent times it seems that every other day there is a new leak, revelation, anonymous source or other commentary about a business or government department which is alleged to have said or done the wrong thing.  Online culture incentivises those who see wrongdoing to expose it to the world and let the particular behaviour be judged by the public (or at least those who have Twitter accounts).

That instinct can be tricky when it is an employee who spots bad behaviour by their employer, or particular people inside that organisation.  Employees owe a duty of good faith and fidelity to their employer.  Essentially, if they can avoid harming the organisation they must do that.  So what happens when an employee sees something so outrageous they are certain it needs to be exposed?

Protection for Whistleblowers

In New Zealand, certain types of disclosures have had legal protection since 2000.  However, that legislation was loosely drafted and poorly understood.  The new legislation (which will shortly come into force) is called the Protected Disclosures (Protection of Whistleblowers) Act.  In a nutshell it means that someone discloses information about certain types of very bad behaviour are protected from employment processes or other legal consequences.

Importantly, the whistleblower must act in good faith, believe reasonably that there has been serious wrongdoing by the discloser’s organisation, and follow the procedure contained in the Act.

The Act helpfully clarifies what is included in serious wrongdoing.  Since the original 2000 Act came in, people have tried to claim whistle-blower status for raising all sorts of concerns (reasonable or otherwise).  One main area of difficulty was about claims of bullying or institutional culture.  The new Act makes it clear that those sorts of complaints do not get these legal protections and would need to go through a normal personal grievance or other HR complaint process.  The whistleblower protections are limited to actual crimes, serious risks to health and safety or the environment, interference with justice, public corruption, and other serious actions in the public sector.

How Employers should deal with disclosures

For employers, the Act gives excellent guidance about how to handle a genuine whistle-blower disclosure.  In fact, it is good advice for receiving any complaint from staff, including tips like:

  1. Acknowledging receipt of the complaint;
  2. Considering whether the complaint requires investigation;
  3. Address any issue which needs to be dealt with; and
  4. Keeping the complainant updated throughout (to the extent you can).

Whistle-blowers will often want to remain anonymous.  It is a big step to raise issues which may affect powerful or important people in an organisation.  The new Act provides some protection.  Essentially, that person’s identity must be kept secret unless they consent or it is essential that it be disclosed for certain reasons.  For example, if the person themselves was involved in the wrongdoing, or was the only witness, their identity may need to be disclosed to the culprit to carry out a fair process.

The Act does not protect staff making wild or plainly untrue allegations about their colleagues.  It is not “open season”.  If an employer forms the view that a disclosure does not fall under the Act (for example, the employee was acting in bad faith, and could not reasonably have believed the activity was “serious wrongdoing”) then the employer may consider that disclosure warrants punishment itself.  .

It is compulsory for public organisations to have formal internal policies and procedures to deal with genuine whistle-blower cases.  We recommend that all medium to large private employers also have policies to help guide staff and managers in these situations.  Those policies, combined with the new legislation, should address some of the confusion we have seen in the last 20 years about what is / is not a “whistle-blower” case.

How can we help?

WRMK Lawyers has Northland’s largest team of employment law specialists. We help our clients identify and prevent “whistle-blower” situations, but also dealing with complaints and disclosures if they arise.  If you need help or guidance, please give one of us a call or contact your usual WRMK lawyer for advice.

You can view our Employment Law team here.

WRMK Lawyers takes all reasonable care to make sure that the information in this article is up-to-date and accurate at today’s date. It is necessarily general information and not intended as legal advice to be relied upon.

Our thanks to Simon Davies-Colley for writing this article.

Get in touch with your question now