There has been much sound and fury from politicians and the media about the practice of utilising “gagging” clauses in agreements between the NHS and its employees, usually employees who leave its service under a compromise agreement.

Recent announcements by the Health Secretary and the Chief Executive of the NHS have brought further attention to the question of the ability of Trusts to enter into agreements with employees and former employees which seek to protect NHS confidentiality whilst promoting a declared aim of openness, highlighting shortcomings, and promoting best practice within the NHS. Jeremy Hunt has also sought to promote the aim of openness still further by declaring his intention to create a new statutory duty on the NHS to be honest about its mistakes, to be known as duty of candour.

Despite these announcements and attempts at clarification, there remains some obscurity about how these competing aims can be reconciled. An example may serve to illuminate what can and cannot be achieved when seeking to balance the competing interests of confidentiality and promotion of openness:

A doctor may witness the adoption within his department of an unsafe medical practice which has been developed and promoted by a more senior clinical colleague. He is instructed that he should adopt the same unsafe medical practice. He considers that the unsafe medical practice could result in an increased risk of damage to the health and safety of patients, and that the instruction to him to adopt the same practice represents a contravention of the implied term of trust and confidence in his contract of employment. The circumstances are such that it is reasonable for the doctor to believe that there has been or is likely to be damage to the health and safety of patients and that the instruction to him to adopt the practice is a breach of his contract.

The doctor also alleges, without any satisfactory evidence or good reason, that the clinician responsible for the unsafe clinical practice is adopting the procedure because he is being paid by a medical devices company to promote the procedure which necessitates the use of their products.

Having raised his concerns the whistleblower’s relationship with his clinician colleague breaks down. His employer, an NHS Trust, after following due process, enters into mediation with the whistleblower which results in him agreeing to leave the NHS Trust, the terms of the settlement being captured in a compromise agreement. There may be some legitimate sensitivity about the relationship with the medical devices company and perhaps the commercial terms that the Trust has agreed with it. The terms of the compromise agreement might, quite properly therefore, include a confidentiality agreement.

Under Section 43J of the Employment Rights Act 1996 where a protected disclosure has been, or will be made, nothing in the contract including a compromise agreement (soon to be relabelled a settlement agreement) can operate to prevent a worker from referring to the information which is the subject of a protected disclosure.

Referring to the above example the whistleblower, in raising concerns about health and safety and the breach of his own contract of employment, is making a protected disclosure because there has been a disclosure of information to his employer that in his reasonable belief the health and safety of patients is at risk of being damaged, and that there is a breach of a legal obligation, that his own contract of employment is being breached by being instructed to adopt the unsafe clinical practice. The allegations of improper dealings between his senior clinician colleague and the medical devices company is made without any form of reasonable belief and therefore, would not constitute a protected disclosure. The first two issues being protected disclosures cannot as a result of Section 43J be made the subject of a confidentiality clause and any attempt to do so would render such a clause void and unenforceable against the whistleblower. The announcement by the Health Secretary, Jeremy Hunt, on 11 March that gagging clauses are no longer to be used is therefore, far from being a significant step forward or a new development, but rather an attempt to reinforce the existing law.

Jeremy Hunt’s announcement is only the latest attempt to make clear that genuine concerns should be capable of being discussed openly. Guidance was issued by Sir David Nicholson in January 2012 by which he attempted to clarify the circumstances in which confidentiality clauses could be utilised where a protected disclosure had also been made. The letter of guidance stated that where a confidentiality clause was included in a compromise agreement, the clause should go on to state that the clause did not have the effect of preventing the worker party to the compromise agreement from disclosing information which constituted a protected disclosure.

What has been required of NHS trusts over the last 15 months is that there is an explicit statement that the protected disclosure can still be referenced by the whistleblower despite them signing up to a confidentially agreement. However, change is coming to the general law of whistleblowing with amendments to the Employment Rights Act 1996 proposed by the Employment and Regulatory Reform Bill (the “Bill”) currently passing through Parliament and due to become law in the coming weeks. The Bill proposes a change in the definition of a protected disclosure so that it is, arguably, narrowed.

For a worker to gain protection from suffering dismissal or detriment or to be able to speak freely without concerns about infringing confidentially obligations, the information constituting the protected disclosure must be something which it is in the public interest to be known. In general, there will be no public interest in knowing that an individual’s contract of employment has been breached, although there may be circumstances where a breach of a contract of employment might be something which is in the public interest to be known. The Bill does not provide a definition of public interest.

Going back to the example of whistleblowing above, and applying the changed definition of a protected disclosure to the three concerns raised by the whistleblower (the use of an unsafe clinical practice, breach of the whistleblower’s contract of employment, and the alleged improper dealings with the medical devices company), it is likely only the first of these will be a protected disclosure under the new definition, there being no public interest element for the second allegation and no grounds to sustain a reasonable believe in the case of the third allegation.

The provision that nullifies a confidentiality or “gagging” provision in a compromise or other agreement will operate so the whistleblower can bring the first of his three concerns to the attention of the NHS Trust, a regulator and indeed may raise the matter with the media if he can demonstrate that he believes the disclosure to be substantially true (which would properly mean ensuring that limited information is disclosed where the substantial truth of it is more easily capable of being demonstrated), the information is not provided to the media for gain and that the whistleblower has first disclosed these matters to his employer, regulator or other prescribed person (there is a list of prescribed persons to who a protected disclosure can be made).

The provision that nullifies a confidentiality or “gagging” provision in a compromise or other agreement will still be capable of enforcement so the whistleblower can bring the first of his three concerns to the attention of the wider world (subject to the modest preconditions above), but he would infringe his confidentially and other obligations if he chose to speak openly about the second and third allegations as they are unlikely to constitute protected disclosures under the amended legislation.

The Bill also proposes to introduce a new form of protection, a right not to be victimised, a claim which can be brought by a whistleblower against both a fellow worker who subjects the whistleblower to detrimental acts as a consequence of him making a protected disclosure and also the employer can be held vicariously liable for any worker’s act of victimisation. There will be a defence for employers if they can demonstrate they have taken all reasonable steps to prevent the detrimental treatment of the whistleblower by a co-worker. The formula is the same as that for victimisation claims brought under the Equality Act 2010. Effectively this will require training of the workforce and/or amendment of procedures and policies which make clear that this form of victimisation is unacceptable, and that can bring with it for the employee personal liability for any such acts.

Unlike other parts of the Bill Clause 19 which deals with the creation of vicarious liability doesn’t yet have a proposed commencement date in contrast to other similar provisions which are expected to come into effect two months after the Act gains the Royal Assent.

Confidentiality agreements can be part of a compromise agreement with a whistleblower but they cannot usually prevent the making of protected disclosures to regulators and the media. Those matters which form the protected disclosure should be explicitly identified in the compromise agreement. In the drafting of such a clause careful consideration needs to be given as to what constitutes a protected disclosure both now and under the amended definition under the Bill.