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Gagging clauses have become quite the talking point thanks partly due to the Harvey Weinstein scandal and the #MeToo era and countless other news stories exposing their misuse. Controversial debate around the use of gagging clauses, or NDAs (non-disclosure agreements) and financial settlements to conceal sexual assault and harassment has tarnished the image of NDAs and highlighted their harmful impact of encouraging a culture of silence in cases of serious misconduct.

NDAs, sometimes referred to as confidentiality clauses or “gagging clauses” are written into a contract to stop information being disclosed. They serve a useful and legitimate role in employment contracts and settlement agreements. They protect commercially sensitive information and prevent employees sharing this information with their competitors.

However, there is increasing evidence these gagging clauses are being used unethically by some employers to intimidate whistleblowers, silence victims of harassment and discrimination, and conceal wrongdoing in the workplace.

But there are limitations to what can legally be ‘gagged’ by NDAs, which workers are often unaware of.

The current law on whistleblowing states any agreement which prevents a worker from whistleblowing, or making a protected disclosure is void ( s43J Public Interest Disclosure Act, PIDA, 1998,) but s43J has been hotly debated. NDA wording is often vague and contains no clear guidance as to how confidentiality clauses should be used and to what extent they should highlight the worker’s rights.

Protect has long been calling for NDA reform. A key ask in our Draft Whistleblowing Bill to reform PIDA is NDA reform. We want to see stronger and clearer wording to prevent the use of gagging clauses and a guarantee whistleblowers faced with a settlement agreement will get legal advice on any non-disclosure clauses.

A  Government Consultation March-April 2019 by BEIS  (Department for Business, Energy & Industrial Strategy) concluded clauses being used to silence and intimidate victims of harassment and discrimination cannot be tolerated. Almost half (48%) of respondents had seen an example of a confidentiality clause that attempted to cloud a worker’s right to make a protected disclosure or overstretch the extent to which the information is confidential. The Consultation stated that it is important that workers understand their rights when they sign a confidentiality clause so they are not misled that they cannot disclose certain information. 83% of respondents agreed that confidentiality clauses should clearly highlight the disclosures that are not prohibited.

Protect suggested the following reforms to the law:

 

  • an exclusion in any NDA allowing for the disclosure of information about workplace harassment or discrimination to a regulator - not just the police - so wrongdoing that falls short of criminal conduct can be investigated and individuals held to account
  • improved advice for all employees: there is a very low awareness of employment rights around whistleblowing, as well as discrimination and harassment, and obscure wording around settlement agreements does not aid understanding• a standard document to be handed to all employees who sign a settlement agreement, explaining the limits of all confidentiality clauses in non-legalistic language

In our Draft Bill we address the lack of clarity of gagging clauses in settlement agreements by proposing clearer wording for s43J:

‘No agreement made before, during or after employment between an individual and an employer may preclude that individual from making a protected disclosure.’

Additional to this clearer wording is that any settlement agreement involving whistleblowing will have a clear statement saying that nothing in the agreement can stop the individual escalating the concerns, and certificate from an independent legal advisor explaining the requirements and limitations of the confidentiality clause.

We believe these provisions will make a whistleblower’s rights and responsibilities under a settlement agreement much clearer.

 

Blog written by Rhiannon Plimmer-Craig


Protect welcomes the launch of Dr Whitford MP’s private members bill – Public Interest Disclosure (Protection) Bill as an important step towards reforming the legal protection for whistleblowers.  Protect Acting Chief Executive, Liz Gardiner, said, “We’ve been calling for legislative reform as today’s whistleblowing law is out of date, so we are delighted that Dr Whitford has proposed her bill.  Her actions and the efforts of Baroness Kramer with her Office of the Whistleblower Bill, will put more pressure on the Government to reform whistleblowing laws in the UK”.

Dr Whitford’s bill proposes stronger enforcement of whistleblowing rights and a new independent body to set, monitor and enforce standards and to carry out its own investigations.

Protect have drafted their own proposals to replace the current whistleblowing legislation, the Public Interest Disclosure Act 1998 (PIDA).

Liz Gardiner said, “We look forward to seeing the detailed content of Dr Whitford’s Bill and then to working with all those who are committed to reforming the whistleblowing legislation.”


Amjad Rihan raised concerns about his employer laundering money and was branded a troublemaker and dismissed. Howard Shaw raised concerns about the Met Police’s interview process and was removed from his unit and faced unfounded disciplinary action. Shahmir Sanni blew the whistle on Vote Leave’s campaign tactics and was outed as gay by Downing Street and dismissed.

Under the Public Interest Disclosure Act 1998, whistleblowers have the right not to suffer any detriment as a result of raising public interest concerns. Rihan, Shaw and Sanni should not have been victimised, bullied nor dismissed for taking the brave and difficult decision to raise workplace wrongdoing. The problem with the current legislation is that it only allows workers to bring a claim in the Employment Tribunal once the detriment has occurred. By this time, it is often too late.

More needs to be done to stop victimisation at source before it occurs. Protect’s new draft Whistleblowing Bill aims to improve the law in this area.

Primarily, our draft Bill will place a positive duty on employers to actively take all reasonable steps to prevent detrimental treatment of whistleblowers or to stop detriment immediately if it begins to occur. This would mean employers would need to be far more proactive in terms of preventing managers, co-workers and third parties such as suppliers from retaliating against a whistleblower. This duty will mean that whistleblowing or speak up procedures can no longer simply be a “tick-box exercise”. Employers will need to demonstrate that they have effective measures in place.

This is so important because fear of victimisation can impact on the ability of concerned workers to raise their concerns. Our joint survey with YouGov from 2018 showed that 23% of working adults would not speak up due to fear of reprisals - the most common barrier preventing workers from raising concerns. This means that victimisation is dangerous for the whistleblowing culture of any workplace; if other workers are aware of colleagues being victimised for speak up, then this suppress future whistleblowing.  By compelling employers to consider and implement procedures to specifically prevent victimisation, whistleblowers will feel more confident about coming forward.

A 2017 study by the Association of Certified Fraud Examiners showed that fraud is more effectively detected by tip-offs than internal auditing. Furthermore, research from Stubben and Welch in the USA has shown that firms which actively use their internal reporting systems are more likely to address concerns before they become larger problems which means employers face fewer legal claims. This not only reduces litigation costs for employers but also lowers settlement amounts. A new duty on employers will not be a burden on good organisations but instead will offer a competitive advantage as it will punish organisations that do not take whistleblowing or speak up culture seriously.

This new duty offers great protection for whistleblowers, employers and the public more generally.

By Kyran Kanda, Protect Adviser

 


Protect Head of Policy Andrew Pepper-Parsons said: "It is good news for whistleblowers that the Government are proposing a crackdown on NDAs with new legislation to prevent the cover up of workplace harassment, discrimination and assault.

"Protect were invited to give evidence to both the Women & Equalities Select Committee and the Government's consultation on NDAs where we stated there is a need for clearer, plainer English surrounding NDAs, a stronger regulatory framework to tackle toxic workplace culture and a requirement for lawyers to explain the limits of NDAs on future disclosures.

It is important that any reforms are not narrowly focused on harassment and discrimination cases. The need for greater clarity in NDAs also applies to whistleblowing about other wrongdoing including reporting financial misconduct,safeguarding, environmental damage and so on.

We will be pressing the Government to use the opportunity of these reforms to simplify the language around the anti-gagging provisions in the Public Interest Disclosure Act (PIDA) so that all whistleblowers can feel more secure in blowing the whistle where they have signed a settlement agreement."


Julian Assange is back in the limelight, after seven years holed up in the Ecuadorian Embassy. Most media and public attention has been focused on the man, while the war atrocities that Wikileaks revealed have not been addressed.

Is Assange a hero? A criminal? Someone to be proud of and to defend, or someone who has brought disgrace, and created instability? Society and the justice system demand answers…

Allegations about Assange the man have obscured an important question about how the powerful are not keen to discuss the very real wrongdoing that Assange helped to bring to light. WikiLeaks, Assange’s outlet, published evidence from whistleblower Chelsea Manning which indicated the most severe kind of wrong doing: war crimes, extreme abuses of power, lying in public office, deliberately misleading the public and the press, and destroying the lives and livelihoods of innocent civilians. What action is being taken to make it easier for those like Manning to raise concerns safely in future?

The key question no one seems to be asking is why Manning felt forced to use Wikileaks to expose clear and appalling wrongdoing in the first place. Both Manning and Assange risked being heavily criminalised for revealing secret information. You may disagree with their approach, Protect view the mass dumping of national security documents to be reckless and is not how good, responsible journalists approach such issues, but without these leaks, how would these atrocities have come to light?

Anyone who comes across wrongdoing at work needs to have appropriate channels to raise their concerns. Our advice, and the structure of the Public Interest Disclosure Act 1998, steers workers to raise concerns internally, with an appropriate regulator or MP, and only with the press in limited circumstances if other routes will not be effective. There is no public interest defence for those who commit a crime by their whistleblowing to the press. This places whistleblowers in often impossible situations where silence or anonymous disclosure become the only options.

In the UK, many laws – including the Official Secrets Act – make it a crime to disclose unauthorised information. For the recipient there is also a risk. The Assange case is controversial – If Assange is prosecuted, will this have a chilling effect on other journalists who may be on the brink of revealing similar outrages? There are many views on whether Assange should be extradited or not, and if so to Sweden or the US. But whatever happens to him, the freedom of the press must be protected so this crucial safety valve for whistleblowers remains open.

By Protect adviser Laura Fatah


Social care in England is undervalued, underfunded and on the brink of collapse. Being old and in care can, for some people, feel precarious. The statistics showing the state of care homes across the UK are sobering. The Care Quality Commission regulator says almost one in four care homes are inadequate or require improvement, while Age UK says 1.2 million people over 65 had some level of unmet care needs in 2016-17.

Protect (formerly known as Public Concern at Work) believes the care sector could benefit if staff feel able to speak out. With so many care homes rated inadequate or in need of improvement, we believe residents and staff face risk, danger and malpractice. The 400 annual calls to our whistleblowing advice line from the care sector are, we suspect, just scratching the surface of the problems facing care homes. Protect would like to gain a clearer picture of whistleblowing in care homes, which is why we have launched a survey.

Our advice line receives about 2,500 calls a year, and its findings should worry anyone working in senior management in the care home sector:

  • Care staff are often left unsupported by their employer, with one in three saying their whistleblowing concerns – often a safeguarding or patient safety issue – were ignored.
  • More than half of whistleblowers also reported some kind of victimisation, with 23% saying they have been dismissed after raising concerns.

Staff are the eyes and ears of an organisation and can act as an early warning system of potential risk or malpractice. Staff who feel comfortable raising a concern, or whistleblowing, may possibly save lives or complex litigation down the line.

Alerting managers to potential risks, wrongdoing or malpractice long before it becomes a problem is a good thing. Much of our work at Protect is getting this message across to organisations and encouraging them to not only embrace whistleblowers, but also be grateful for the issues staff raise.

It sounds simple. If it were, Protect would not need to exist.

This summer, the government is due to publish a much-needed green paper on reforming care for older people, which we welcome. However, until then, we’re very concerned about the issues facing the 1.5 million care home staff in England and those they care for. If you work in care homes, please help us at Protect to build a clearer picture of whistleblowing and the issues facing care homes in England.

Whether you are a care home worker, nurse or manager, we would like to hear your views in our very short survey ( which is open until the end of April). The results (email addresses and names will not be captured or featured in this survey) will help Protect campaign for stronger whistleblowing in care homes.


THE STORY

FA worked as a care assistant in an old people’s home. He and some of his colleagues were worried that SM, one of the managers, might be stealing cash from the residents. SM, looked after residents’ pocket money and kept a record of when sums were paid out. FA was fairly sure that money was recorded as being given out to particular residents when they had received none.

After a while, he thought he had to raise the concern as the amount involved was adding up. After he raised his concerns with the owners of the home, an investigation quickly found FA was right, SM was dismissed and the police were called in. Relations within the home were tense as some of SM’s friends strongly objected to the whistleblowing. Within weeks, FA was suspended over allegations that he had mistreated the residents. He rang us.

WHAT WE ADVISED

We advised that he should bite his lip and deal with these allegations squarely. Although the investigation found they had no substance, the owners decided to transfer FA to another home. FA was very unhappy and rang us again. We helped him draft a letter to the owners explaining that he wanted to stay at that home and that transferring him after he had blown the whistle would give out the wrong messages to other staff.

WHAT HAPPENED

The owners reconsidered and FA stayed at the home. When FA rang to tell us that SM had been convicted of stealing £1400 from the residents, he said the atmosphere in the home was now much improved.