The use of Confidentiality Clauses and Derogatory Statement Clauses within Settlement Agreements: The rights and responsibilities of NHSScotland employees and employers

This Guidance has been developed in Partnership to support and inform NHSScotland employees and employers of their rights and responsibilities, should they decide to enter into a settlement agreement or a COT3 facilitated by ACAS. The intention of this Guidance is to help both employees and employers to consider their position when considering the inclusion of a confidentiality clause and/or derogatory statement clause in a settlement agreement or COT3.

Section 4. What is whistleblowing?

Whistleblowing is when a worker - the 'whistleblower' - reports suspected wrongdoing at work. Officially this is called 'making a disclosure in the public interest'. Sometimes it is referred to as 'making a protected disclosure', or, 'making a qualifying disclosure' - depending upon the circumstances. A worker can report things that they genuinely feel aren't right, are illegal, or if anyone at work is neglecting their duties. A full description of the procedure in NHSScotland is set out within the 'Implementing and Reviewing Whistleblowing Arrangements in NHSScotland' PIN.

PIDA outlines various types of disclosure which may qualify for protection. These disclosures are ones made by an employee who has a reasonable belief that one of the following is being committed, has been committed, or, is likely to be committed:

  • A criminal offence;
  • A miscarriage of justice;
  • An act creating risk to health and/or safety;
  • An act causing damage to the environment;
  • A breach of any other legal obligation; or
  • Concealment of any of the above.


Email: Anna Gilbert

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