New whistleblower laws are a step closer to coming into force from 1 July 2021, following a Select Committee report this week recommending the Protected Disclosures (Protection of Whistleblowers) Bill (Bill) is passed with minor amendments. 

In this article we summarise the upcoming changes and what employers should be doing to get prepared.

Protected Disclosures (Protection of Whistleblowers) Bill

The Education and Workforce Select Committee has this week recommended the passing of the Protected Disclosures (Protection of Whistleblowers) Bill, with minor amendments. The new legislation is therefore likely to take effect from 1 July 2021.

The new regime will continue to protect whistleblowers who disclose serious wrongdoing in their workplace. The bill is designed to strengthen the regime, including by:

• Clarifying the definition of serious wrongdoing and extending its application to cover unlawful, corrupt or irregular use by the private sector of public funds and authority.
• Enabling people to report serious wrongdoing to an appropriate authority at any time (currently this is only possible if a disclosure is about the head of an organisation or if there is urgency or exceptional circumstances). 
• Setting out a clearer process for what organisations should do within a 20 working day timeframe of receiving a protected disclosure. 
• Clarifying internal procedure requirements for public sector organisations and requiring them to state how they will provide support to whistleblowers. 
• Clarifying the potential forms of adverse conduct whistleblowers may face.
• Amending the Employment Relations Act 2000 to include a standalone personal grievance for retaliating or threatening to retaliate against a whistleblower.

The Select Committee’s recommendations

The amendments recommended by the Education and Workforce Select Committee include:

• Further simplifying the definition of serious wrongdoing so it is easier to understand and is clear that it applies to all organisations, not just those in the public sector.
• That if the receiver of a disclosure decides that no action is required they must advise the whistleblower of that decision and the reasons for it.
• A clause requiring a review of the legislation in five years’ time.
• Including additional clauses to protect privacy in line with the Privacy Act 2020.
• Clearer provisions relating to tikanga Māori (such as the ability to escalate issues to kaumātua).

Possible extension of “serious wrongdoing” to include bullying and harassment?

The Select Committee recommended that further policy consideration is given to the definition of “serious wrongdoing” and whether it should be extended beyond its current focus on serious and immediate risks, rather than issues that could have ongoing or cumulative effect on individuals (such as bullying and harassment). 

The Ministry of Business, Innovation and Employment is separately consulting on its Bullying and Harassment Issues Paper, with submissions closing today. Given this, and a five-year review of the new regime proposed, it is possible that an extended definition may be on the cards.

Notably, the Green Party has called for much more transformative change and recommends a stand-alone whistleblowing agency and a regime that covers bullying and harassment disclosures.

Next steps - preparing for the changes

We recommend that employers review their whistleblowing policies and procedures in advance of the changes coming into force. While the internal procedure requirements are only mandatory for public sector organisations, they provide a useful best practice reference for employers in the private sector as well. 

Policies should be clear and easy to understand about what “serious wrongdoing” is, and many existing policies will need to be updated to include the right to make a disclosure to an external authority at any time.  We recommend being clear about the appropriate external authority for your organisation and that this does not include the media or on social media.