Protected Disclosures

An employee of an organisation may disclose information to an appropriate authority if the employee believes the information relates to serious wrongdoing and is true or likely to be true.  The purpose of the disclosure must be for the purposes of investigating the serious wrongdoing.  Employees also covers contractors, board members and volunteers.

If an employee makes a disclosure under the Protected Disclosures Act the employee is protected from civil, criminal or disciplinary actions and this applies even if the employee was mistaken as to the serious wrong doing.

The employee should first use any established internal procedures to report the serious wrongdoing within the organisation but can go straight to an appropriate authority if they believe on reasonable grounds that the head of the organisation is involved in the serious wrongdoing or the immediate referral to the authority is warranted due to the urgency or exceptional circumstances or there has been no action on the internal referral within 20 working days.

The appropriate authority receiving the information must take all care to not disclose the identity of the employee making the disclosure unless limited exceptions apply.

Employees who volunteer supporting information are also protected under the Act so long as they did so prior to being approached by the investigators.

The act does not permit the disclosure of legally privileged information and any such disclosure is not protected.

No one can agree that the act does not apply so employees cannot contract out of their protections. Additionally, the organisation cannot establish internal procedures that contravene the Act.

The most common appropriate authorities for employees to make the disclosure to are the Police, Auditor-General, Serious Fraud Office, Inspector General of Intelligence and Security, Ombudsman, Commissioner for the Environment, Police Conduct Authority, Solicitor-General, State Services Commissioner and Health & Disability Commissioner, heads of Public Service organisations, and professional disciplinary bodies but does not include Members of Parliament.

Alan Knowsley

Employment Lawyer Wellington