Gagging clauses ‘banned’ to encourage transparent NHS

Health secretary Jeremy Hunt has announced that the NHS will no longer be able to gag former employees from speaking out about issues in the public interest.

Confidentiality clauses in compromise agreements have been used by NHS employers to stop former employees from speaking out about matters such as patient safety or poor care. But the health secretary has said these will be banned with immediate effect.

In an interview with the Daily Mail, Hunt said: “The era of gagging NHS staff from raising their real worries about patient care must come to an end.”

Compromise agreements will now have to be approved by the Department of Health and the Treasury. Hunt said that approval will be denied if the agreement has a confidentiality clause that prevents people speaking out.

Hunt said that a “culture of covering up problems” is what led to the Mid Staffordshire scandal, where more than 1,000 patients died. The ban comes after former chief executive of United Lincolnshire Hospitals Gary Walker broke his reported £500,000 compromise agreement by speaking out on BBC’s Today programme last month.

Dean Royles, chief executive of NHS Employers, said: “Significant progress has been made in recent years to improve procedures for staff to raise concerns and the vast majority of NHS staff say they know how to and feel safe to do so. We want this to be the case for all our staff.

“Compromise agreements remain a valuable tool for both employers and employees and can be used in sensible and legitimate ways that reduce costs to employers, help ensure value for money and meet the interests of patients and the public.”

Jeya Thiruchelvam, employment law editor at XpertHR, pointed out, however, that under s.43J of the Employment Rights Act 1996, a clause in a compromise agreement that seeks to prevent a worker from blowing the whistle is already void: “It will be interesting to see how the ban announced by Jeremy Hunt adds to the protection that already exists.

“It is not yet clear whether the ban will involve a legislative change or an amendment to NHS rules/policy. Or whether the ban will simply involve a requirement that compromise agreements must be approved by the Department of Health with approval being withheld if, for example, the agreement includes an inappropriately wide confidentiality clause.

XpertHR resources

Good practice guide to whistleblowing

How to handle whistleblowing

XpertHR FAQs: Whistleblowing

What is a public interest disclosure?

Can a term in a contract override a worker’s right to disclose?

To whom can a worker “blow the whistle”?

How should an employer prevent employees disclosing to external bodies?

Can an employer dismiss an employee for making a public interest disclosure?

How can an employer ensure that its employees are able to raise any concerns that they have about failures or wrongdoing within the organisation?

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