Confidentiality and gagging clauses have been brought back into public view, with the recent disclosure by former United Lincolnshire Hospitals Trust CEO, Gary Walker, on the BBC's Today Programme about an alleged gagging clause in his compromise agreement. Whilst the debate rages on as to whether gagging clauses should be allowed in such circumstances, Peter Jones from our Employment Team considers the legal position.
The Public Interest Disclosure Act 1998 (PIDA) introduced a
provision into employment law rendering any provision in an
agreement between a worker and their employer as "void in so
far as it purports to preclude the worker from making a protected
disclosure." Protected disclosures (often referred to as
whistleblowing) are, broadly speaking, disclosures of information
made in good faith by a worker (or former worker) to their
employer, a relevant regulator, lawyer or others (such as the
police or media) raising concern about past, present or likely
future wrongdoing, including criminal offences, breach of any legal
obligation, health and safety concerns, miscarriages of justice,
damage to the environment or a suspected cover-up of any of these.
In general terms, employment contracts containing confidentiality
clauses might be viewed by workers as limiting their ability to
raise their concerns. They could even contain express clauses that
purport to limit a worker's right to raise their concerns.
However PIDA makes clear that such terms should not prevent a
worker from 'blowing the whistle' on their
employer.
The position in relation to compromise agreements is potentially
more complicated, as these exit agreements operate to waive
potential claims by a worker against their (usually former)
employer, in return for a payment and often an agreed employment
reference and announcement etc. They also invariably contain
confidentiality clauses, which often go so far as to state that the
worker is not allowed to disclose to any third party the existence
or terms of the settlement agreement or anything about the
circumstances of any dispute or termination. Many such agreements
also state that the parties to the agreement must not make adverse
or disparaging comments about each other.
Clearly the whistleblowing legislation also applies to compromise
agreements, so any term that seeks to prohibit a compromised worker
from raising genuine concern of the type envisaged by PIDA could be
void, if, but only if, certain technical requirements are complied
with by the worker.
In the case of whistleblowing to the media, the legal test for a
'protected disclosure' is complex and stringent. Concerns
can be raised outside an organisation in this way and still attract
protection but only if a number of tests are met.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.