Compromise agreements in the NHS must clearly state that individuals are not prevented from whistleblowing, the Government has confirmed.
As highlighted in Personnel Today’s report last week, gagging clauses are already banned under s.43J of the Employment Rights Act 1996.
A spokeswoman from the Department of Health (DoH) confirmed to XpertHR that no new legislation is required to ban gagging orders in the NHS. Instead, a requirement has been introduced, with effect from 14 March, that agreements relating to special severance payments – payments made outside of an employee’s contract – must now include a clause making it clear that nothing in that agreement will prevent an individual whistleblowing in future.
There was already an existing requirement that the DoH signed off all special severance payments, but no requirement that the agreements made it clear that nothing would prevent the individual from whistleblowing.
Approval has not previously been required, however, for special severance payments made as a result of judicial mediation. Since 11 March, approval is now required from the DoH for special severance payments made as a result of such mediation.
Asked by Public Accounts Committee chair Margaret Hodge on Monday whether or not the changes to compromise agreements would be applied retrospectively, Sir David Nicholson, chief executive of the NHS in England, said they would.