Understanding the amended Protected Disclosures Act: A comprehensive guide for employers

On 2 August 2017, significant amendments to the Protected Disclosures Act, 26 of 2000, were published, marking a new chapter in whistleblowing legislation. These amendments extended the Act’s scope beyond the traditional employer-employee relationship, introducing additional responsibilities for both whistleblowers and employers. It is crucial for employers to understand these changes, for purposes of promoting transparency, accountability and ethical conduct within the workplace.

The Protected Disclosures Act, 26 of 2000 (“PDA”), effective since 16 February 2001, provides a framework for whistleblowers in both public and private sectors. It promotes the disclosure of unlawful or irregular conduct, thereby promoting good governance and transparency. However, protection under the Act is not unconditional, and disclosures must meet specific criteria to qualify for protection. The Act addresses a range of irregularities, including criminal offences, legal contraventions, miscarriages of justice, threats to health or safety, environmental harm, and unfair discrimination.

Key amendments and new employer obligations

The Act was amended by the Protected Disclosures Amendment Act, 05 of 2017, which came into full force and effect on 01 January 2023. These amendments introduce the term “worker” alongside “employee,” thereby broadening the scope of protected individuals. Employers are now mandated to establish internal whistleblowing procedures, ensuring that all employees and workers are made aware thereof. Furthermore, employers are now required to respond in writing to disclosures within 21 days, thereby keeping the whistleblower informed of the investigation process.

Timelines and Decision-Making Requirements

Upon receiving a protected disclosure, employers have 21 days to decide whether to investigate or refer the matter to an appropriate entity. If a decision cannot be made within this period, the employer must inform the whistleblower in writing and provide regular updates, aiming to complete the process within six months.

Liability, Protections, and Penalties

The amended Act extends protection against occupational detriment to include civil claims for breaches of confidentiality and adverse effects on contract acquisition or retention. Whistleblowers who disclose information in good faith are further protected from civil, criminal, or disciplinary proceedings. However, intentional false disclosures made with the intent to cause harm can lead to criminal prosecution, with penalties ranging from fines to imprisonment for up to two years.

The recent amendments to the Protected Disclosures Act highlights the importance of proactive compliance for employers. By implementing strong whistleblowing policies, maintaining responsive timelines and through promoting a culture of transparency, organisations can mitigate risks while preserving workplace integrity and confidentiality.

Compliance with these changes is therefore not only a legal responsibility, but also a wise move towards cultivating an ethical and accountable work environment. Prioritising accountability and transparency builds trust among employees and empowers them to report irregular, illegal or unethical practices. Leaders who set the tone through example are essential in fostering a secure environment where whistleblowers feel safe to come forward.

Ackermann Attorneys provides clear guidance on compliance with the Protected Disclosures Act, helping clients establish effective whistleblowing policies and practices. Our firm supports organisations in fostering a safe, transparent work environment that aligns with legal requirements and promotes accountability.

Contact us today for more information.