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‘Whistleblowing’ is when an employee looks to report wrongdoing committed by someone else in the company or organisation, often a person more senior than them. This reporting is called “blowing the whistle” and can be an extremely important way of discovering:

  • fraud;
  • criminal conduct; and 
  • unsafe behaviour in a company or public sector organisation.

Because of this, New Zealand law offers protection to ‘whistleblowers’. However, your company can help clarify and structure for employees in your own organisation. This is commonly achieved through a whistleblower policy. This article will set out:

  • the rules around making a protected disclosure under New Zealand law; 
  • the role of a company policy; and 
  • what happens if your company does not have such a policy when an employee looks to make a report.

What Is a Protected Disclosure?

Under New Zealand law (the Protected Disclosures Act), employees are protected whenever they make a ‘protected disclosure’, in either a private or public sector workplace. A protected disclosure is when a worker reports “serious wrongdoing”, following the required process.  Serious wrongdoing includes:

  • any conduct that poses a serious risk to public health, safety, the environment or the maintenance of the law (such as criminal justice);
  • unlawful or corrupt use of public money or resources;
  • any criminal offence; and
  • gross negligence or mismanagement 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 Does a Company Whistleblower Policy Do?

A company whistleblower policy sets out the internal processes an employee should follow if and when they make a protected disclosure. It should:

  • guide the employee as to what kind of wrongdoing is “serious” and should be reported;
  • inform employees about protections they receive if they choose to disclose; and 
  • who to talk to to 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, depending on who or what they are seeking to make protected disclosures about.

For instance, if it is their manager who is committing wrongdoing, an employee can go to another party (perhaps in Human Resources) to talk to instead.

Some companies and organisations use a third-party specialist hotline for whistleblowers. This can help employees who feel that, for whatever reason, they cannot make a disclosure or serious report to somebody in the company. These organisations can help guide employees through the process and also help them ascertain what their best options are on the basis of their information or knowledge. 

What if the Company Does Not Have a Whistleblower Policy?

There are specific rules set out for those situations where an organisation has not set out procedures for how to report serious misconduct. These also apply where the organisation does have procedures in place but the employee feels they cannot trust them.

For instance, if they suspect that the Human Resources manager has been party to serious wrongdoing.

Those rules are that an employee can go directly to the head of your organisation if:

  • your organisation does no have these internal procedures;
  • 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, an employee can avoid the internal processes altogether and go straight to a public authority or organisation (such as the Ombudsman, who governs these issues), to make a protected disclosure. The conditions for this are if the employee believes that:

  • the head of the organisation is involved;
  • there are urgent or exceptional circumstances; or
  • if the employee has followed your organisation’s internal procedures, but there has been no substantive action or proper response within 20 working days.

Employees who ‘blow the whistle’ (make protected disclosures) get certain protections.

For example, information identifying that person must be kept confidential in most instances. Their identity can only be disclosed if they consent.

Key Takeaways

Making a protected disclosure is when a worker reports serious wrongdoing following the required process. When an employee wants to report serious wrongdoing, the first step is to follow the business’ internal procedures. A whistleblower policy usually sets this out. For this reason, it is important for businesses to have one. A company whistleblower policy sets out the internal processes an employee should follow if and when they make a protected disclosure. If you want to know more about whistleblower policies, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

FAQs

What does a whistleblower policy do?

A whistleblower policy sets out the processes an employee should follow if and when they make a protected disclosure, and the information they need to know (such as what information classifies as “serious wrongdoing”). 

What protections do whistleblowers receive?

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

What does ‘blowing the whistle’ mean?

‘Whistleblowing’ is when an employee reports serious wrongdoing committed by someone else in their company or organisation.

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