New whistleblower framework receives royal assent

The Protected Disclosures (Protection of Whistleblowers) Bill (Bill) that was introduced into Parliament last year has now received royal assent on 13 May 2022 and will repeal and replace the Protections Disclosures Act 2000 (PDA) on 1 July 2022.  This will be known as the Protected Disclosures Act 2022 (Act).

Previously, public awareness of whistle-blower legislation was relatively low, with many employees and employers lacking an understanding of how the regime works.  However, as discussed in our previous article of 21 January 2022, some of the changes coming into force may well change this.

While the Act goes a long way in clarifying the process for whistleblowing (both for disclosers and receivers) and enhances protection for the those making disclosures, it has muddied the waters somewhat in relation to the expansion of the definition of “serious wrongdoing”.  This is because, at the eleventh hour, the definition of serious wrongdoing was expanded to expressly include behavior that is a serious risk to the health and safety of any individual, which could apply in situations of bulling and harassment for example.

We discussed this in our previous article, noting it would be worth watching and that an amendment expanding the definition could result in the legislation being a tool for employees to express a litany of minor grievances.

This has therefore created added complexity for businesses navigating different legislative obligations relating to the same issue – for example, an employee with a complaint of bullying and harassment could feasibly claim a breach of the Health and Safety at Work Act 2015, or raise a personal grievance under the Employment Relations Act 2000 (ERA), or make a protected disclosure under the Act (after 1 July 2022).  Depending on which route the employee chooses, an employer would need to respond according to the requirements of each piece of legislation.

Prior to the second reading of the Bill, the Select Committee identified the issue of an employee making a complaint relating to bullying and harassment under the Act which may be better addressed by using the mechanisms of the ERA and it was decided that given a ‘receiver’ of a complaint can decide that no action is required under the Act because the matter is being addressed by other means, this is a non-issue.

We beg to differ, however. Much like employees being able to pursue a claim of discrimination under either the Human Rights Act 1993 or the ERA, it is confusing for employers when it comes to ensuring they are responding to an employee in accordance with their legal obligations. Not only does it become a minefield for employers, it can also become difficult for employees to know how to raise an issue with their employer.

Where to from here

Employers should familiarise themselves with the changes and review and update internal whistleblowing procedures before 1 July 2022, to ensure they are consistent with the requirements of the Bill.   While private employers are not required to have whistleblowing procedures and policies under the Bill, it would be prudent to have a policy given the possibility of an employee now making a protected disclosure in relation to bullying and harassment.  On the same token, we would also recommend all employers revisit their bullying and harassment policies.

We will keep you updated with any further guidance and let us know if you have any queries regarding navigation of the new legislation.

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