This post was contributed by Amanda Sanders
The UK Government Health Secretary, Jeremy Hunt, announced in the press in March that gagging orders which prevent whistleblowers in the National Health Service (NHS) from raising concerns about patient safety are to be banned. Employees who leave their NHS posts will be given a new legal right to voice their concerns about public interest issues including patient safety and death rates. He has said that “compromise agreements” which prevent staff from discussing matters that could embarrass their employers when they move on will be outlawed from now on. This is seen as a response to the shortcomings of the NHS in Mid-Staffordshire, where failings in patient care were alleged to have resulted from staff feeling unable to raise concerns.
The right of employees to “blow the whistle” on their employer is set out in legislation, which protects whistleblowers who are dismissed or subjected to a detriment on the ground that they have made a protected disclosure. A protected disclosure will arise, for example, where the employee has a genuine concern about illegal, unethical or dangerous practices. Such concerns should usually be raised internally in the first instance, but may also be raised with a statutory regulator or, in exceptional cases, on a wider basis, such as to the press.
Many UK employers currently use compromise agreements to settle any potential disputes with employees which may arise after their employment has ended. One of the clauses often included in these agreements is an obligation on employees to keep the terms of the agreement confidential. How does this impact on the employee’s right to “blow the whistle”? Under UK employment legislation, a clause in an agreement which attempts to prevent employees from making protected disclosures is void. There is often an express clause in an agreement making it clear that the confidentiality obligation is without prejudice to the employee’s right to “blow the whistle” provided they comply with the legislation on protected disclosures. Even without this an employee will retain the right to make a disclosure.
The current difficulty seems to be that many employees are unaware of these rights and are therefore deterred from making a protected disclosure because of such a clause in their agreement with the employer. The question is, how far will Mr Hunt’s new law go or will it simply clarify the law on whistleblowing which already exists?