High level announcements about restrictions on the use of confidentiality clauses have “limited significance” but may help to clarify their effect for staff, lawyers have told HSJ.
Last week health secretary Jeremy Hunt announced he was banning the use of so-called gagging clauses preventing employees who leave under a compromise agreement from raising concerns about patient safety.
A spokeswoman for the DH told HSJ Mr Hunt’s announcement meant in future all compromise agreements would have to include a clause stipulating that any requirements for confidentiality do not prevent an individual from raising patient safety concerns.
On Monday NHS chief executive Sir David Nicholson told the Commons public accounts committee the ban would be applied “retrospectively”. The DH spokeswoman said this did not mean any existing agreements would be amended, but those subject to them should now feel confident to raise concerns.
Compromise agreements which attempt to prevent employees from raising patient safety concerns have been void since the introduction of the Public Interest Disclosure Act in 1998. However, many whistleblowers and campaigners have claimed confidentiality clauses are misused or have a chilling effect on their raising concerns.
Mr Hunt said last week: “The era of gagging NHS staff from raising their real worries about patient care must come to an end.
“I’ve already been clear with the NHS that this is illegal — but now the NHS will get a clear message that they won’t even get these agreements signed off unless and until they are clear with staff about their legal right to blow the whistle.”
Sarah Maddock, professional support lawyer on Bevan Brittan’s employment team, told HSJ the announcement was of “fairly limited significance” and most legal firms had been putting wording to this effect into compromise agreements “for a while”.
She said anyone signing an agreement should be talked through it by their lawyer to make sure they fully understood what they were agreeing to.
Employment partner at Hempsons Paul Spencer told HSJ the announcement did not have a substantial effect but emphasised a “new transparency” in the NHS.
“The announcement is smoke and mirrors. [However] If it’s not explicit in the agreement, staff might interpret that they are being gagged when the reality is that’s not the case.
“[If they are under that impression] it is probably because they have received inadequate legal advice when signing the agreement.”
In a separate move health minister Dan Poulter announced the government was changing the rules governing pay offs for NHS staff agreed through judicial mediation, a process in which an employment tribunal judge oversees negotiation of an out of court settlement. Dr Poulter said in future these payoffs would require sign off by the Department of Health and the Treasury.