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Gagging clauses for NHS staff "must come to an end"

14 March 2013 #Employment

The health secretary, Jeremy Hunt, has said he wants to see a clampdown on "Gagging clauses" in severance agreements for NHS staff.  He would also like to introduce wording into severance agreements making it clear people could still whistle-blow.  He told the Daily Mail that "we need a culture of openness and transparency if we are going to stop another Mid Staffs from happening. The era of gagging NHS staff from raising their real worries about patient care must come to an end."

The statement by Mr Hunt follows the scandal surrounding Stafford Hospital, where hundreds of patients are believed to have died after receiving poor care.

Controversy over gagging clauses has emerged after Gary Walker, the former chief executive of United Lincolnshire Hospitals Trust, broke his silence and claimed he was forced out of his job in 2010 because he had concerns about patient’s care. Mr Walker said he was paid £500,000 under a settlement agreement in 2010.

It is already against the law to stop whistle-blowing over a safety issue. This was made clear by the 1998 Public Interest Disclosure Act (the “Disclosure Act”).  Therefore, there are limits to the effectiveness of gagging clauses.  However, the concern from Mr Hunt is that staff who enter into a severance agreement with the NHS, are deterred from disclosing safety issues because the onus is on them to prove that any disclosure will be authorised under the Disclosure Act.

Implementing this approach to gagging clauses could pose difficulties. When someone leaves employment over a dispute, both sides often wish to keep the reasons confidential.  A carefully drafted clause will no doubt be needed in order to provide some confidentiality whilst still complying with any legal obligations.


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