Following the Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry and the government’s initial response, NHS Employers has published guidance on the use of compromise agreements and confidentiality (“gagging”) clauses to clarify the position for whistleblowers.
The guidance is essential reading for anyone who works or has worked in the NHS and has concerns on patient safety or the general standards of care and has signed or is about to sign a Compromise Agreement.
Typically compromise agreements contain confidentiality clauses preventing you from discussing details of the settlement and the circumstances of your departure. You can also be prevented from making any derogatory comments about your employer and its employees and officers. In addition, you are also likely to be subject to a confidentiality clause in your Employment Contract preventing you from disclosing sensitive information.
Under the Public Interest Disclosure Act 1998 (“Act”), there are various types of disclosures that may qualify for protection under the Act, as set out below:
“Any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:
a) that a criminal offence has been committed, is being committed or is likely to be committed,
b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
d) that the health or safety of any individual has been, is being or is likely to be endangered,
e) that the environment has been, is being or is likely to be damaged, or
f) that the information tending to show any matter of failing within any one of the preceding paragraphs has been or is likely to be deliberately concealed.”
The Act makes it clear that any clause in a compromise agreement or employment contract which conflicts with the protection in the Act will be void. Therefore confidentiality clauses such as those typically found in compromise agreements cannot exclude cases of Whistleblowing. However “gagging clauses” have led to confusion and uncertainty. You may feel deterred from voicing concerns if you have signed or are about to sign a compromise agreement with such a clause.
The recent guidance issued by NHS employers sets out a model clause to be inserted into compromise agreements, which aims to reinforce the fact that whistleblower protection cannot be excluded by a confidentiality clause.
The clause states that: “For the avoidance of doubt nothing in this Agreement shall prejudice any rights that the Employee has or may have under the Public Interest Disclosure Act 1998 and/or any obligations that the Employee has or may have to raise concerns about patient safety and care with regulatory or other appropriate statutory bodies pursuant to his or her professional and ethical obligations including those obligations set out in guidance issued by regulatory or other appropriate statutory bodies from time to time.”
The clarification provided by the guidance is to be welcomed.
If you are a whistleblower and you have suffered a detriment or been dismissed as a result of your disclosure, you can bring a claim in the Employment Tribunal for any losses you have suffered and there is no statutory cap on the losses that you can claim.
There was further good news for whistleblowers, who make protected disclosures after employment has ended. The recent case of Onyango v Berkeley (t/a Berkeley Solicitors) confirmed that you are also protected from suffering a detriment even after the termination of employment.
If you have any concerns on this subject please contact us on 0800 916 9060 or email firstname.lastname@example.org.
By Employment Solicitor Deborah Casale.