On 15 February 2013 Pitmans commented on the so called “gagging orders” in light of the case of Gary Walker, a former NHS Chief executive (see Bound and gagged?). Mr Walker was dismissed from his role in February 2010 and then signed a compromise agreement which contained a provision for payment and a confidentiality clause that prevented him from talking about the agreement and the issues behind his dismissal. Mr Walker allegedly breached the gagging order and told the press he was forced out of his job because he put patient safety ahead of government targets.
In an interview yesterday Jeremy Hunt, the Health Secretary said that no confidentiality clauses which prevent employees speaking out about issues concerning patient safety or care will be approved by the Department of Health or the Treasury. They will simply be banned.
This indicates that there is a changing culture within the public sector whereby confidentiality clauses should be wholly proportionate and never compromise the main goal of the NHS, the welfare of patients. This news may encourage employees to relax the extent and impact of confidentiality clauses in certain circumstances. It may also be interesting to see how this may advance into other sectors such as education and the care of children and vulnerable adults.
In the wake of this public pressure, there is a chance Parliament may intervene and legislate. Indeed employers should be reminded that there is protection in place for genuine whistle blowers. The law currently assists individuals who make disclosures on the grounds of matters including criminal offences, danger to the health and safety of an individual, damage to the environment or breach of any legal obligations.
Mr Hunt’s comments mean the recommendations that Pitmans’ employment team made in the last news bulletin on this topic are now even more relevant – whistleblowing policies and confidentiality clauses within compromise agreements should be reviewed.
An effective whistleblowing policy should, amongst other things, provide adequate protection to workers wishing to make a disclosure in confidence, detail the procedures that the employer will follow when investigating disclosures and outline what penalties may be imposed if an employee’s allegations are malicious.
Confidentiality clauses should be wide enough to cover the situation specific to the employee in question. However, such clauses must also make it evident that the confidentiality obligation is without prejudice to the employee’s right to “blow the whistle” provided that the employee complies with the law on protected disclosures.