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

Annex B

Dear .......................................

We are advised that you are considering entering into a Settlement Agreement as an employee of .......................................

We would like to take this opportunity to draw to your attention the Guidance on 'The use of Confidentiality Clauses and Derogatory Statement Clauses within Settlement Agreements' which provides guidance on the rights and responsibilities of NHSScotland employees and employers on the use of such clauses. This Guidance can be found at [inset electronic link when published].

As an employee, we would ask that you fully consider this Guidance, and that you:

• seek advice from an appropriate independent advisor as early as possible about the proposed terms and conditions of your settlement;
• make sure, with the assistance of your independent advisor, that you fully understand the effect of all of the terms before agreeing and entering into a settlement agreement;
• make sure, in discussion with your independent advisor, that the statutory requirements for settlement agreements to be legally binding are met (see Section 1 of the Guidance);
• be clear whether or not you wish to have a confidentiality clause and/or derogatory statement clause inserted into your settlement agreement, and, if so, be clear of your reasons for this;
• if you decide that a confidentiality clause and/or derogatory statement clause is to be included in your settlement agreement, ask your independent advisor to ask your employer to record the reasons for the inclusion of the clause(s) and copy this to you;
• make sure that you know your rights under PIDA (see Section 5 of the Guidance); and
• be aware that regardless of whether or not a confidentiality clause is included in your settlement agreement, you have a responsibility to comply with the Data Protection Act 1998, any professional obligations, and confidentiality within your terms and conditions of employment.

COT3

• Whilst the principles outlined in the Guidance also apply to a COT3, it should be noted that independent advice is not required, but employees should consider obtaining legal advice from a trade union representative, solicitor or other legal advisor (see Section 2 of the Guidance).

I hope that you find this helpful, and please contact ....................................... if you have any queries regarding this letter.

Yours sincerely,