Off the Bench and into Action: The Whistle Blows on the Protected Disclosures Act 2022

The Act aims to simplify the reporting process for serious wrongdoing, and provide better protections for employees who choose to blow the whistle on the conduct of their employer.

What’s changed?

• The definition of serious wrongdoing has been extended. Now to include any act or omission that puts the health and safety of an individual at serious risk, as well as including any private sector misuse of public funds.
• Guidance is provided on what the receiver of a protected disclosure should do. In summary, within 20 working days the receiver of information is required to:
  1. Acknowledge receipt;
  2. Consider the disclosure and whether it warrants investigation;
  3. Check with the discloser whether the disclosure has been made elsewhere (and any outcome);
  4. Deal with the disclosure.  This includes a variety of actions such as investigating, addressing or referring the disclosure as appropriate.  Deciding that no    action is required is also an option; and
  5. Inform the discloser with reasons about what the receiver has done or is doing to deal with the matter.

• The Act entitles a discloser to make a disclosure of serious wrongdoing at any time to an appropriate authority. “Appropriate authority” is broadly defined to include the head of a public sector organisation, officer of Parliament, and membership body of a profession with the power to discipline its members.  Previously, a disclosure could only be made to an appropriate authority if specific circumstances existed. 
• The Act also clarifies that an appropriate authority may choose to decline the disclosure or refer it to the organisation concerned or another appropriate authority, stipulating the process to be applied when doing so.
• Finally, the Act provides better protections for disclosers.  It prohibits “retaliation” by employers, as well expressly including a “victimisation” provision (previously only incorporated by way of reference to the Human Rights Act 1993).  Both are described below:

Retaliation:

An employer must not retaliate, or threaten to retaliate, against an employee because the employee intends to make or has made a protected disclosure.  Retaliation includes:

• Dismissing the employee;
• Refusing or omitting to offer the employee the same terms of employment as other employees employed in substantially similar circumstances;
• Subjecting the employee to some detriment or disadvantage; or
• Retiring the employee or causing the employee to retire.

If an employee experiences retaliation, it is entitled to raise a personal grievance under the Employment Relations Act 2000.

Victimisation:

An employer (or any other person) must not treat, or threaten to treat a discloser, or relative or associate of a discloser, less favourably than it would treat other persons in the same or substantially similar circumstances on the basis that the discloser, or relative of the discloser:

• Has made or intends to make a protected disclosure;
• Has encouraged another person to make a protected disclosure; or
• Has given information in support of, or relating to, a protected disclosure.

What does this mean for Employers?

The Act is more prescriptive than its predecessor in respect of the obligations imposed upon an employer (as a potential “receiver” of information) to ensure that correct processes are followed when a protected disclosure is made.

Employers should look to develop internal policies to ensure the processes followed comply with legislative requirements, but also to ensure that those policies are made available to employees so that they understand their protections.

It is helpful to identify a person within the organisation as someone that an employee looking to make a protected disclosure can go to should the need arise.  This gives an employee more confidence that the person they are disclosing to is equipped to deal with the issue and understands the confidential nature of the disclosure process (keeping in mind that many employees may feel vulnerable in making a protected disclosure).

Consideration should also be given to the fact that employees often work in close quarters with one another, potentially making it difficult for a discloser to feel comfortable reporting to another person in the organisation.  Educating employees on their ability to report to other entities outside of the organisation where appropriate (such as to an appropriate authority) will help ensure employees understand their options in this respect.   

If you have any questions about the Protected Disclosures Act, please get in touch with our Employment 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.