Confidentiality and gagging clauses have been brought back into public view, with the recent disclosure by former United Lincolnshire Hospitals Trust CEO, Gary Walker, on the BBC's Today Programme about an alleged gagging clause in his compromise agreement.   Whilst the debate rages on as to whether gagging clauses should be allowed in such circumstances, Peter Jones from our Employment Team considers the legal position.

The Public Interest Disclosure Act 1998 (PIDA) introduced a provision into employment law rendering any provision in an agreement between a worker and their employer as "void in so far as it purports to preclude the worker from making a protected disclosure." Protected disclosures (often referred to as whistleblowing) are, broadly speaking, disclosures of information made in good faith by a worker (or former worker) to their employer, a relevant regulator, lawyer or others (such as the police or media) raising concern about past, present or likely future wrongdoing, including criminal offences, breach of any legal obligation, health and safety concerns, miscarriages of justice, damage to the environment or a suspected cover-up of any of these. In general terms, employment contracts containing confidentiality clauses might be viewed by workers as limiting their ability to raise their concerns. They could even contain express clauses that purport to limit a worker's right to raise their concerns. However PIDA makes clear that such terms should not prevent a worker from 'blowing the whistle' on their employer. 

The position in relation to compromise agreements is potentially more complicated, as these exit agreements operate to waive potential claims by a worker against their (usually former) employer, in return for a payment and often an agreed employment reference and announcement etc. They also invariably contain confidentiality clauses, which often go so far as to state that the worker is not allowed to disclose to any third party the existence or terms of the settlement agreement or anything about the circumstances of any dispute or termination. Many such agreements also state that the parties to the agreement must not make adverse or disparaging comments about each other.

Clearly the whistleblowing legislation also applies to compromise agreements, so any term that seeks to prohibit a compromised worker from raising genuine concern of the type envisaged by PIDA could be void, if, but only if, certain technical requirements are complied with by the worker.

In the case of whistleblowing to the media, the legal test for a 'protected disclosure' is complex and stringent. Concerns can be raised outside an organisation in this way and still attract protection but only if a number of tests are met.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.