NHS can use gagging clauses as long as employees know they don’t apply to safety issues, guidance says

BMJ 2013; 346 doi: (Published 23 April 2013) Cite this as: BMJ 2013;346:f2606
  1. Clare Dyer
  1. 1BMJ

Confidentiality or “gagging” clauses can still be used in agreements to settle disputes between NHS trusts and departing employees as long as they make it clear that former employees are free to speak out on patient safety and other public interest issues, NHS Employers says in new guidance.1

Agreements may still bar former employees from revealing the fact that an agreement existed, negotiations over it, and its terms. NHS organisations may also bar former employees from revealing confidential information acquired as a result of their employment, and either party may be prevented from making “untrue, disparaging, misleading, or derogatory” remarks about the other.

But any agreement should make it clear in writing that nothing in it would prevent the former employee from speaking out on patient safety issues or other matters in the public interest.

The guidance, drawn up with the help of the law firm Capsticks, follows a letter from NHS England’s chief executive, David Nicholson, in January to the chief executives and human resources directors of NHS trusts highlighting the importance of not stopping staff from raising concerns in the public interest.

England’s health secretary, Jeremy Hunt, followed this up with a letter in February to chairs of NHS trusts pointing out that clauses that barred employees or former employees from disclosing information in the public interest were void under the Public Interest Disclosure Act.

NHS Employers, part of the NHS Confederation, the membership body for organisations providing and commissioning NHS services, has also issued updated guidance on making special severance payments to departing employees, above their contractual entitlement.2 The guidance makes it clear that all such payments, including those reached by judicial mediation, are subject to Treasury approval and open to scrutiny by the National Audit Office and the House of Commons Public Accounts Committee.

A note in the guidance given above the template to be filled in for cases where Treasury approval is sought says, “You should be aware that HM Treasury cannot approve special severance payments that reward, or will be seen to reward, failure, dishonesty, or inappropriate behaviour.”

Trusts are also required to explain what lessons have been learnt from the case and how management systems have been improved to avoid similar cases recurring.

Dean Royles, chief executive of NHS Employers, said, “With over a million employees in the NHS, it’s unfortunate but employment relationships sometimes fracture.

“These agreements help the NHS and individuals avoid expensive and sometimes acrimonious legal proceedings amounting to millions of pounds every year. The process of approval of these agreements helps ensure value for money.”


Cite this as: BMJ 2013;346:f2606