Jo Douglas explains the obligations and advantages of a well-developed whistleblowing policy.
The term ‘whistleblowing’ often conjures up thoughts of major newsworthy scandal, but in reality, it applies whenever an employee considers there has been serious wrongdoing in or by an organisation.
The Protected Disclosures Act 2000 (“the Act”) offers protection to the person raising concerns if they reasonably believe their concerns to be true and that the complaint falls into one or more of the following categories of serious wrongdoing:
- An unlawful corrupt or irregular use of funds or resources of a public sector organisation;
- conduct that poses a serious risk to public health, safety or the environment;
- conduct that poses a serious risk to the maintenance of the law, including the prevention, investigation and detection of offences, and the right to a fair trial;
- any conduct which amounts to an offence.
Additional categories apply to wrongdoing in the public sector.
This means that issues like poor leadership or dissatisfaction with how a business is run is not covered. It is also not intended to cover employment issues which should be dealt with in accordance with the Employment Relations Act.
An employee making a disclosure of serious wrongdoing will be protected in the following ways:
- The person to whom the disclosure is made must use their best endeavours not to disclose any information that would identify the discloser, unless one of the exceptions in the Act applies.
- The employee will be protected from court proceedings regarding a potential breach of obligations of confidence. It does not mean the employee is protected from liability if they were involved in the wrongdoing too.
- The employee will be protected from retaliatory action or disadvantage in the workplace, and can take a personal grievance if this happens.
- The employee will be protected from victimisation under the Human Rights Act 1993.
However, there is concern that these protections don’t go far enough and the Protected Disclosures (Protection of Whistleblowers) Bill is currently before Parliament in an attempt to strengthen the current law.
These proposed changes allow serious wrongdoing to be reported directly to an external authority if a discloser wishes to do so and makes it clearer who the appropriate authority is. They also outline what those receiving disclosures should do.
What whistleblowing arrangements do employers need?
Currently, there is no legal obligation for private businesses to put any specific whistleblowing procedures in place. However, it is good practice to implement an internal policy which supports employees to raise any concerns of wrongdoing, and how they should do that internally.
Not only is this good from a risk management perspective as it increases the chances of your business detecting and resolving any wrongdoing early, but it also ensures that your whistle-blower obligations are met.
The policy should set out:
- What serious wrongdoing is and how it should be reported.
- Who they should make the disclosure to. For example, you could nominate a Protected Disclosures Officer (“NPDO”) in your business.
- What information the discloser needs to provide.
- The process that the organisation will follow to investigate the concerns fairly.
- How the outcomes will be reported back to the discloser.
- The protections employees will receive.
If the workplace doesn’t have an internal policy or the disclosure relates to wrongdoing of the NPDO or its not appropriate to report to the NPDO because of their relationship with the alleged wrongdoer, then the discloser has the option of reporting their concerns to the head of the workplace.
An individual can also take their complaint externally to another agency, if they are not satisfied with the organisation’s response. The Bill before Parliament also clarifies that an individual can still take their complaint to an external authority, at the same time as pursuing a disclosure through the internal channels.
As part of that process, an organisation or business might consider putting in place a “portal” to an external agency which can receive complaints confidentially. The advantage of the complaints process going through an external agency, is that it gives the discloser greater comfort that their complaint will be dealt with in a neutral and anonymous way.
A well-developed policy should help employees feel safe reporting misconduct and also help employers promote a culture of honesty and trust. You can then set the standard in your business that you have no tolerance for fraud or theft, bribery and corruption, bullying and harassment, discrimination, or health and safety issues.
By considering your complaint channels for reporting, any concerning issues may be picked up earlier and dealt with appropriately before they become a big problem.
You may also find that you can enhance your workplace culture and deliver on objectives towards sustainability, profitability, and create an organisation that gains high trust both internally and externally.
Jo Douglas is a partner at Douglas Erickson, employment lawyers.