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You may have heard of the term ‘whistleblowing’, but have you heard of ‘protected disclosures’?
Protected disclosures are a creature of the Protected Disclosures (Protection of Whistleblowers) Act 2022 (the Act). It is essentially the same idea as whistleblowing but gives statutory protection to a complainant making complaints about serious wrongdoing. The Act also requires employers to maintain the confidentiality of the complainant (including their identity) and protect the discloser from retaliation.
We summarise below what a protected disclosure is and how it differs from generally raising complaints with an employer.
Protected disclosures – what are they, and who can make them?
Any employee, homeworker, secondee, contractor, volunteer, member of the Armed Forces or individual involved in the management of an organisation can make a protected disclosure.
To do so, however, more is needed than simply raising concerns about behaviour in or about an organisation. An individual must check off several statutory requirements, including coming within the definition of “discloser”, and believing on reasonable grounds that there is, or has been, “serious wrongdoing” in or by their organisation. Importantly, any disclosure cannot be made in bad faith.
However, a technical failure with these requirements will not affect a discloser’s entitlement to protection (so long as there is substantial compliance).
Serious wrongdoing, and the difference between protected disclosures and formal complaints
The Act’s definition of “serious wrongdoing” includes:
- An offence;
- A serious risk to the health and safety of the public or an individual;
- A serious risk to the maintenance of the law;
- Unlawful, corrupt or irregular use of public funds or resources; and
- Oppressive, discriminatory or grossly negligent acts, or gross mismanagement by a public sector employee or a person performing a public function.
This definition is actually quite limited, and in the employment context complainants may often find that their complaint does not fit within any of these categories. Luckily, an individual who has made a disclosure in accordance with the Act is still entitled to protection even if they are mistaken and there is no serious wrongdoing.
However, if a complaint clearly does not fall within the meaning of serious wrongdoing, employees should raise their complaint with their employer, who may then investigate and take action. If this is the case and the employer wants to investigate the complaint and take any action against the respondent, the detail of the complaint and the identity of the complainant will almost certainly need to be disclosed to the respondent – so the employer can run a fair process.
What happens once a protected disclosure is received?
The Act provides guidance for the receiver of a disclosure. This includes that within 20 working days, the receiver should acknowledge receipt, consider the disclosure, check whether the disclosure has been made elsewhere, “deal with” the disclosure and inform the discloser as to what the receiver has done or is doing to deal with it.
This timeframe can be extended if it is impracticable, but the receiver should still take other steps within 20 working days, such as providing an indication of the expected timeframe.
Interestingly, the above is guidance only – the Act makes clear that there is not an enforceable legal obligation to take these steps.
The Act also sets out what it means to “deal with” a protected disclosure. Receivers have the option of investigating, acting or recommending action, referring the disclosure onwards, or deciding that no action is needed. Unlike the other aspects of the guidance, some of these points are addressed in more detail in subsequent sections, meaning that there are enforceable legal obligations related to some of these steps.
Protections under the Act
If a protected disclosure has been made in accordance with the Act, a discloser is entitled to a number of protections, including that:
- Their identity must be kept confidential (subject to some exceptions);
- There must not be retaliation in their employment (for example, dismissal, or treating employees differently in respect of their terms of employment or opportunities for training and promotion);
- Neither the discloser, their relatives nor their associates can be treated less favourably; and
- They cannot be subject to court or disciplinary proceedings for making a disclosure.
In our next article of this series, we look at how these ideas have been dealt with in practice – read that here.
If you have any questions about protected disclosures in employment, please get in touch with our Employment Law Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
