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

Purpose of this document

This Guidance has been developed in Partnership to further support and inform employees and employers of their rights and responsibilities, should they decide, for whatever reason, to enter into a settlement agreement or a COT3 facilitated by ACAS.

The information in this document is not intended to provide legal advice. It has been produced to help guide both employees and employers and to help them consider their position when considering the inclusion of a confidentiality clause and/or derogatory statement clause in a settlement agreement or COT3, and detail employment and legal protections in relation to whistleblowing. This Guidance covers:

Section 1. What is a settlement agreement?

Section 2. What is a COT3?

Section 3. Why include a confidentiality clause or a derogatory statement clause in a settlement agreement?

Section 4. What is whistleblowing?

Section 5. Legal protections for employees who whistleblow (Public Interest Disclosure Act (PIDA)) 1998.

Section 6. What do I need to consider when entering into a settlement agreement?

• as an employee?
• as an employer?

Annex A. Draft confidentiality clause and draft derogatory statement clause style of wording

Annex B. Letter template for employers to send to employees considering entering into a settlement agreement

Annex C. Confidentiality Clause Guidance Group - membership