Settlement Agreements and Non-Disclosure Agreements (NDA): FOI release

Information requested

1. The number former employees that have signed an NDA or a compromise agreement upon leaving the Scottish Government

2. The total financial cost of each agreement, including pay in lieu of notice, payments to reflect lost earnings, pensionable pay, etc.

3. The reason for the payment (i.e. bullying, sexual harassment, etc.)

3. Whether the agreement contained confidentiality clauses

4. Whether the NDA/agreements prevented former employees publicly raising concerns

5. Details of what internal action was taken against the perpetrator (in cases of bullying, sexual harassment, etc.)

Response

You have asked for information about former employees who have signed a settlement agreement (NDA or compromise agreement) on leaving the Scottish Government. Our response therefore covers staff who were employed in the Core Directorates of the Scottish Government – see Annex A.

You have also asked for information for the last 5 years. Our response is therefore based on the time period 15 May 2015 to 15 May 2020 (that is, the date of your request).

During this time period, 12 staff signed a settlement agreement on leaving the Scottish Government.

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 clause.

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, 1 settlement agreement has included a confidentiality clause.

While we aim to provide information wherever possible, I am unable to provide the remainder of the information requested because an exemption under section 38(1)(b) of FOISA applies. That exemption applies because the information is personal data of a third party/parties and disclosing it contravenes the data protection principles set out in the General Data Protection Regulation (GDPR), Regulation 2016/679 and section 34(1) of the Data Protection Act 2018.

ANNEX A
Core Directorates of the Scottish Government:
·Director-General Constitution and External Affairs
·Director-General Economy
·Director-General Education, Communities and Justice
·Director-General Health and Social Care
·Director-General Organisational Development and Operations
·Director-General Scottish Exchequer

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.