Slides

1. The Law of
Whistleblowing
Washington University – Fall 2014
class # 26

2. Public
Interest
Disclosure
Act
(PIDA)

3. PIDA
Disclosure must be both
- Qualifying [Subject matter]
&
- Protected [Recipient]

4. § 43B(1): Qualifying Disclosure
Reasonable belief tending to show:
a - criminal offense
b - failure to comply w/ legal obligation
c - miscarriage of justice
d - health or safety danger
e - environmental damage or
f - deliberate concealment of one of the
above

5. § 43: Protected Disclosure
C - to Employer
D - to Lawyer
E - to Minister of Crown
F - to “Prescribed Person”
G - to Someone Else
H - of “Exceptionally Serious Nature”

6. Criteria for Protected Disclosure
§ 43C-To Employer –
O in good faith
§ 43D-To Lawyer –
o For purpose of getting legal advice
§ 43E-To Minister of Crown –
O in good faith
§ 43F-To Prescribed [designated] person
O in good faith
o Reasonably believe info is substantially true
§ 43G-To Someone Else –
O in good faith
o Reasonably believe info is substantially true
o Not for personal gain
o Reasonable under circumstances
o Additional criteria

7. § 43G-to Someone else
(1) (a) be in good faith
(b) reasonably believe info substantially true
(c) not disclose for personal gain
(d) (2)(a) reasonably believe er will subject W to detriment for
disclosing
(2)(b) both:
• there is no prescribed person &
• reasonably believes evidence will be
concealed/destroyed if W discloses to er
OR
(2)(c) has previously disclosed substantially same info to
(i) er OR
(ii) prescribed person
&
(e) reasonable under all the circumstances:

8. § 43G(1)(e):
“reasonable under all the circumstances:”
circumstances:
(3)
(a) - ID of recipient
(b) - Seriousness of relevant failure
(c) - Whether the failure
- is continuing OR
- likely to occur in the future
(d) - Whether disclosure breaches a
confidentiality duty

9. § 43H: of exceptionally serious nature
(1)
(a) be in good faith
(b) reasonably believe info is substantially
true
(c) not make the disclosure for personal gain
(d) of exceptionally serious nature
(e) reasonable under all the circumstances
• giving due regard in particular to ID of
recipient

10. Protected Disclosure to Someone Else:
either
• § 43G
or
• § 43H
(exceptionally serious nature)

11. PIDA exclusions
• Employees of
– Security Service,
– Secret Intelligence Service or
–GCHQ (Government Communications Headquarters)
PIDA § 43L(11)
• If the disclosure constitutes an offense
(e.g. Official Secrets Act)
PIDA § 43B(3)

12. 2013 amendment
“good faith”
no longer required
But
if employer can show bad faith,
then award reduced by 25%

13. 2013 amendment
now required:
disclosure
must be
in the public
– not purely private –
interest