NHS guidance published on compromise agreements and confidentiality clauses

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NHS Employers has published guidance to help ensure that NHS compromise agreements are appropriately worded, following recent controversy surrounding the use of gagging clauses and the scandal at Mid Staffordshire NHS Trust.

Produced by NHS Employers, the body that supports employers in the NHS, in association with law firm Capsticks, the guidance explains how compromise agreements can support employers and employees when employment comes to an end.

It also explains how confidentiality clauses should feature in compromise agreements, saying they can be used to protect confidential information gained by the employee such as patient records or information about other staff.

“It is important to be clear that [compromise] agreements help the NHS resolve some issues quickly, in a way that can save money and work well for all parties,” said Dean Royles, NHS Employers’ chief executive.

He added: “These agreements help the NHS and individuals avoid expensive and sometimes acrimonious legal proceedings amounting to millions of pounds every year. The process of approval of these agreements helps ensure value for money.”

The NHS Employers document 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, in accordance with s.43J of the Employment Rights Act 1996.

Accordingly, as reported by Personnel Today last month, all NHS compromise agreements will include a clause making it clear that nothing in the agreement will prevent an individual whistleblowing in future. The guidance suggests appropriate wording for this clause.

“These agreements need to be written as clearly as possible, so that everyone understands their duty and rights to speak up for patient care,” added Royles.

The guide, The use of compromise agreements and confidentiality clauses, is available todownload.

NHS Employers has also published Guidance for employers within the NHS on the process for making severance payments

NHS subscribers to XpertHR will see the employment law manual updated in accordance with this guidance in the coming days.


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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