Last week, the Health Secretary announced a clampdown on “gagging clauses” in NHS compromise agreements and has encouraged a move towards agreements which protect individuals who ‘blow the whistle’ post-employment.
The relevant legal principles behind this move apply to all employers.
Earlier this year Mr Walker, a former NHS Chief, broke his silence and told the BBC how he had no choice but to sign an agreement containing a confidentiality clause when he left the NHS in April 2011. Whilst such confidentiality clauses are not uncommon, particularly where employees have had access to personal or sensitive information, this particular clause prevented Mr Walker from disclosing his concerns over patient safety at the Trust. The hospital which Mr Walker worked at is now one of 14 hospitals being investigated for high death rates.
No compromise agreements which restrict departing staff from speaking out will be now approved by the Department of Health. Our view is that, in any event, terms of contracts which aim to restrict public interest disclosures or ‘whistle blowing’ are void. Accordingly, to ensure that ‘gagging clauses’ in compromise agreements (or other agreements) are enforceable they should specifically exclude restrictions on public interest disclosures.
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