The use of Confidentiality Clauses and Derogatory Statement Clauses within Settlement Agreements: The rights and responsibilities of NHSScotland employees and employers

Introduction

The Scottish Government and NHSScotland are committed to ensuring a culture of openness, transparency and candour, where staff are actively encouraged to speak up about wrongdoing and malpractice within their organisation, particularly in relation to patient safety, without fear of recrimination.

Attention has been drawn to the use of confidentiality and derogatory statement clauses in settlement agreements and the perception that these may be used to prevent employees from raising concerns about patient safety and/or malpractice; and that whistleblowers were being 'gagged'.

The Scottish Government and NHSScotland are clear that there should be absolutely no impediment to employees raising concerns about patient safety and/or malpractice in NHSScotland as this makes our health service better.

In order to make the position explicit in relation to whistleblowing, the former Cabinet Secretary for Health and Wellbeing announced in February 2014 that a standard style of wording would be drafted for use by all NHSScotland employers, as a starting point, when negotiating a settlement agreement with employees. Confidentiality/derogatory statement clauses will not be included in any negotiated settlement unless it is explicitly agreed, by both parties, that such clauses are to be used, and that there are clear and transparent reasons for inclusion.

From 1 April 2014, a strengthened process for Public Sector Settlement Agreements requires all public bodies, including Health Boards, to consult the Scottish Government prior to offering or entering into any settlement agreement (with the exception of voluntary exits where the package falls entirely within the individual's contractual arrangements). This process also allows the Scottish Government to monitor usage of confidentiality clauses and/or derogatory statement clauses for consistency with the Cabinet Secretary's commitments.

Whilst the aforementioned strengthened process applies only to 'settlement agreements' (see Section 1), the principles outlined in this Guidance apply to all settlements negotiated between NHSScotland and its employees to conclude employment disputes, including settlements facilitated by ACAS (The Advisory Conciliation and Arbitration Service). When ACAS facilitates settlement of an employment dispute, it is often recorded in a form called a COT3 (see Section 2). It should be noted, however, that procedures and requirements vary from those of settlement agreements as discussed in this Guidance.

Much has already been done to develop a culture where staff are encouraged and supported to raise any concerns, including:

• the introduction of the NHSScotland Staff Governance Standard which requires Employers to ensure that it is safe and acceptable for staff to speak up about wrongdoing or malpractice within their organisation, particularly in relation to patient safety. Under the Standard, staff must also ensure that they speak up when they see practice that endangers patient safety and/or which causes upset and alarm in the workplace in line with the whistleblowing policy;
• the development of a national Whistleblowing policy Implementing & Reviewing Whistleblowing Arrangements in NHSScotland Partnership Information Network (PIN) policy. Through the whistleblowing policy, employees are encouraged to raise any valid concerns they may have and are guaranteed to have their concerns taken seriously and investigated appropriately;
• the launch of the NHSScotland Confidential Alert Line, a dedicated service for NHS staff in Scotland, which provides a confidential service to staff should they have any doubt about whether or how to raise a concern, or worry about doing so. This provides an additional safe space for staff to discuss their concerns with legally trained staff and, if appropriate, have these concerns passed to the appropriate Regulatory body on their behalf;
• the introduction of non-executive Whistleblowing Champions in each Board. This role will act predominantly as an oversight and assurance mechanism, as well as a conduit to ensure that internal mechanisms within Boards are working effectively to support whistleblowing arrangements and staff in raising concerns.