Settlement agreements with confidentiality or derogatory clause: FOI release

FOI reference: FOI/18/01717
Date received: 14 June 2018
Date responded: 13 July 2018

Information requested

In relation to the Scottish Government as an employer:

Q1) How many settlement agreements with employees have contained a confidentiality clause in the last five years?

Q2) How many settlement agreements with employees have contained a derogatory statement clause in the last five years?

Response

Our response to your request covers staff who are subject to Scottish Government Main and Scottish Government Marine terms and conditions of employment and Senior Civil Servants in the organisations listed in Annex A.

At the request of the employee or their legal representative, Settlement Agreements may include a voluntary provision whereby the parties agree to keep the agreement itself confidential and not disclose its details to third parties. Inclusion of such a clause protects the rights of the employee who may have legitimate concerns that disclosure of the terms and circumstances of the agreement and their identity would impact negatively on their privacy and employability. The ACAS guidance provides a model Settlement Agreement which includes a standard confidentiality clause1.

In relation to the first part of your request, we define 'confidentiality clause' as referring to clauses which prevent a signatory to the agreement from disclosing its existence and/or its terms. It is important to note that that inclusion of a confidentiality clause does not – under any circumstances – prevent an employee from making a protected disclosure under whistleblowing legislation. In the last five years, eight settlement agreements have included a confidentiality clause and/or a derogatory statement clause. Given the low numbers and the risk of individuals being identified we are unable to break down the figures further or by year.

Annex A

Coverage of our response

Our response covers staff employed on Scottish Government Main and Scottish Government Marine terms and conditions of employment and Senior Civil Servants in following areas:

• Scottish Government Core Directorates

• Accountant in Bankruptcy

• Disclosure Scotland

• Education Scotland

• National Records of Scotland

• Office of the Scottish Charity Regulator

• Scottish Housing Regulator

• Scottish Public Pensions Agency

• Student Awards Agency for Scotland

• Transport Scotland

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses