New and Improved: The Protected Disclosures (Protection of Whistleblowers) Act 2022

The Protected Disclosures (Protection of Whistleblowers) Act is a new regime intended to facilitate the disclosure and investigation of serious wrongdoing in the workplace, and provide better protection to employees who make disclosures.

The Act is a complete redraft of the Protected Disclosures Act 2000 and will come into force on 1 July 2022.

This redraft has considered concerns raised in 2018 public consultation of the 2000 Act. Those concerns included a lack of clarity of the process to be followed both by the whistleblower in making a disclosure; and the process for the receiver in handling a disclosure. The previous Act did not provide sufficient confidence for disclosers that there would not be any retaliation, and led to a reluctance on employees to raising concerns. The Act was therefore underutilized and ineffective in fulfilling its purpose of facilitating disclosures and protecting the discloser (whistleblower).

While the purpose of the Act remains constant, the aim of the redrafted Act is to simplify and clarify the provisions of the 2000 Act so that it is more accessible.

Important amendments include:

Clarification of what is ‘serious wrongdoing’: The definition of serious wrongdoing is expressly stated in the Act. The definition has been extended to include serious risks to an individual’s health and safety as a serious wrongdoing. Bullying or harassment (including sexual harassment) has now been included as an example.

Concerns may be raised directly with an appropriate authority: The 2022 Act provides that a discloser may raise their concern directly with an appropriate authority at any time, rather than in certain circumstances. This allows employees to avoid confrontation with their employer and protects the employee from being identifiable to the employer.

Schedule 2: Examples of concerns and examples of appropriate authorities: The inclusion of this schedule clarifies who an appropriate authority may be for an area of concern and what may be considered a concern. This inclusion allows for increased understandability and useability for potential whistleblowers.

Clarity of Process (Disclosers): The Act clearly outlines when it may be applied and the process in which to make a disclosure. A clear and concise flowchart has been included in the Act, providing step-by-step guidance on key provisions the discloser must satisfy to utilise the act. 

Clarity of Process (Receivers): Guidance has been provided outlining what a receiver should do within 20 working days of receiving of a disclosure. While this provision is guidance, it is required for public organisations to have internal procedures that are consistent with these provisions and to outline how support will be provided to whistleblowers. While private organisations are not required to have internal procedures for protected disclosures, it should consider whether they are consistent with those set out in the Act. 

A receiver may decide that no action is required but in doing so must inform the discloser and explain their reasoning: Reasons may include: that required criteria of the Act are not met, the length of time between the alleged wrongdoing and the disclosure makes an investigation impracticable or undesirable, or where the matter would be better addressed by other means, such as through a personal grievance under the Employment Relations Act 2000.

Protections for Whistleblowers: The Act ensures protection of the confidentiality of the whistleblower, immunity from disciplinary action for making the action and protection from any retaliation through the utilisation of the following:

• The Privacy Act 2020: The release of any information that might identify the discloser is an interference with the privacy of the individual under the Privacy Act 2020 regardless of whether the release causes harm as a result.
• The Human Rights Act 1993: The Act defines retaliation to include dismissing the employee, refusing the employee the same employment terms, benefits or opportunities as other employees of substantially similar circumstance, subjecting the employee to any detriment or disadvantage inconsistent with that of other employees in the same work and the retiring or causing or requiring of the employee to resign or retire. This provision is consistent the Human Rights Act and Employment Relations Act definitions of unlawful discrimination.
• Employment Relations Act 2000: The Employment Relations Act 2000 will be amended to include employer retaliation or a threat to retaliate against the discloser as grounds for the discloser to raise a personal grievance.

Next Steps:

Public organisations should review their internal procedures around protected disclosures and ensure they are consistent with the requirements of the Act prior to July.

Private organisations may consider whether their procedures align with the Act’s guidelines or whether the development of an internal procedure would be appropriate.

Employees should be made aware of the Act and when it may be used so that it can be efficiently utilised to expose and deter serious wrongdoing in the workplace.

If you require assistance in reviewing or developing appropriate internal procedures related to protected disclosures before the commencement of the Act, the DTI Lawyers specialist employment law team are available on 07 282 0714, or you can email the team personally.