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Protected disclosures are when an employee makes a formal report of serious wrongdoing in their workplace, whether for a private company or public organisation. These employees are often referred to as whistleblowers. Employees making protected disclosures have certain rights and protections under the law, preserving their confidentiality and protecting them from civil or criminal liability for their disclosure. This article will set out: 

  • what protected disclosures are;
  • what the process is for employees looking to make a protected disclosure; and
  • protections for employees who make protected disclosures.

What Is A Protected Disclosure?

A protected disclosure is when a worker reports serious wrongdoing following the process set out by law. This is often informally known as ‘blowing the whistle’. Employees have protection if they make a valid ‘protected disclosure’ in both a private or public sector workplace.

Serious wrongdoing includes:

  • any conduct that poses a serious risk to public health, safety, the environment or the maintenance of the law;
  • any conduct that poses a serious risk to the maintenance of law;
  • unlawful or corrupt use of public money or resources;
  • any criminal offence; and
  • improper and discriminatory acts or gross negligence by public officials.

When an employee wants to report serious wrongdoing, they must start with their organisation’s internal processes for managing and reporting serious wrongdoing.

What is the Process for Protected Disclosures?

When an employee wants to report serious wrongdoing, they are required in most circumstances to start with their workplace’s internal policy and processes for managing and reporting serious wrongdoing.

Your company should have a policy that sets out an employee’s internal processes when they make a protected disclosure. It is best practice to make this process as straightforward and simple for employees as possible. There should also be multiple options for employees in terms of who to disclose their information to.

There are specific rules under the law for organisations that do not have procedures for how to report serious misconduct. Ideally, your business would have processes, so those rules do not need to apply. However, those rules also apply where an organisation does have procedures in place, but the employee feels they cannot trust them.

Those rules state that an employee can go directly to the head of their organisation if:

  • they ‘reasonably believe’ that the person they are supposed to give the information to is involved in the serious wrongdoing or is associated with someone who is; or
  • if the organisation does not have sufficient internal processes.

Alternatively, under certain circumstances, an employee can avoid the internal processes of their workplace altogether. Here, they can go straight to a public authority or organisation, such as the Ombudsman, when making a protected disclosure. These circumstances cover situations where the employee believes:

  • the head of the organisation is involved in the serious wrongdoing;
  • there are urgent or exceptional circumstances; or
  • if the employee has followed their workplace’s internal procedures, there has been no substantive action or reasonable response within 20 working days.

Protections For Employees Who Make Protected Disclosures

Unless your employees disclose information protected by legal professional privilege, their disclosures will be protected under the law. When you or your business investigate the wrongdoing following a protected disclosure, you need to keep the person who made the disclosure’s identity confidential. There are exceptions where it is critical to disclose that information to conduct the investigation effectively or to prevent a serious threat to public health or safety. You should get specific legal advice in these situations.

In New Zealand, people making protected disclosures are protected under the law from:

  • civil liability: for instance, any legal action against them for breach of an employment contract, confidentiality or another contractual obligation;
  • criminal liability: prosecution against them for unlawfully releasing the information in question; and
  • administrative liability: for instance, disciplinary action for making the disclosure.

Failing to respect your employees’ rights when they make a protected disclosure may result in a legal dispute.

Key Takeaways

A protected disclosure in New Zealand is when a worker reports ‘serious wrongdoing’ following the required process set out by law, informally known as ‘blowing the whistle’. Employees are protected if they make a valid ‘protected disclosure’ in this way. Serious wrongdoing covers a range of acts and omissions, including:

  • corruption;
  • serious risks to public health or safety; or
  • a criminal offence.

Your business needs to respect the protection of employees who make protected disclosures. If you want to know more about protected disclosures or designing a whistleblowers policy, contact LegalVision’s employment lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

What is a protected disclosure?

A protected disclosure is when an employee reports ‘serious wrongdoing’ following the required process set out by law. This starts with the internal processes in their workplace, with exceptions if there are issues with those processes.

What is the difference between blowing the whistle and making a protected disclosure?

They are often (but not always) different terms for the same thing. ‘Protected disclosures’ are a specific legal concept in New Zealand. Whistleblowing is often a more informal term.

What protections do people making protected disclosures receive?

When they make a protected disclosure, whistleblowers protect their identity and confidentiality in most cases. It would also be a breach of employment law to dismiss an employee for blowing the whistle.

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