‘Gagging orders’ have been in the news a lot recently. The Government has proposed limiting their use by councils and the NHS, who have been using them to prevent whistle-blowing by ex-employees. The NHS have just published a sensible guide to employers. This explains how confidentiality clauses should feature in compromise agreements and how they can be used to protect confidential information gained by the employee such as information about other staff.
The Guide states that confidentiality clauses should not leave staff in any doubt about their right to speak up in the interests of patient safety and care.
Peter Stanway, our BackupHR legal expert comments:
There are two issues here how to protect your legitimate interests surrounding commercial confidentiality and reputation and how to encourage staff and ex-employees to blow the whistle on undesirable practices.
All organisations should spell out clearly their requirements in relation to Disclosure of Information and Whistleblowing. Those policies should be reasonable and well written. If they are easy to understand then they can be enforced even after an employee leaves employment.
Unless there is an on-going dispute, when an employee leaves it is not normal to have any further agreement in place. If there is a dispute, however, a properly drafted compromise agreement should protect you against any further claim by the employee.
It is quite normal to make an agreed payment for further confidentiality clauses which can protect your reputation and thus prevent the details of the dispute becoming public.
This kind of agreement is usually legally enforceable. The question of whether the public sector should ever use such clauses is a matter of public policy. If you read behind the press headlines, it is clear that the Government are not seeking to prevent confidentiality clauses. But they are trying to stop situations where whistleblowing can be prevented by compromising out employees who have something to say just by offering large payments tied in with confidentiality clauses.
Preventing such gagging orders seems like a perfectly sensible and proportionate response.
The guidance provided in this article is just that – guidance. Before you take any action make sure that you know what you are doing, or call us for specific advice.
