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 5. Legal protections for employees who whistleblow

The Public Interest Disclosure Act (PIDA) 1998 is sometimes known in the UK as the whistleblowing law. All relevant provisions of PIDA are incorporated within the Employment Rights Act (ERA) 1996. This Act ensures that employees who whistleblow are legally protected. The Act gives statutory protections to employees who disclose information reasonably and responsibly in the public interest, and where they have subsequently suffered a detriment or have been dismissed as a result of raising that concern.

Individuals who have suffered a detriment, by any act, or any deliberate failure to act, for whistleblowing can take their employer to an Employment Tribunal.

Where an employee has lost their job as a result of whistleblowing, they could be fully compensated for their losses, with the limit of any compensation being uncapped.

Awards for detriment suffered, which is short of dismissal (e.g. passed over for promotion, having disciplinary action taken against them) will also be uncapped and will be based on what is deemed to be fair and equitable in the circumstances.

Ultimately, it would be for an Employment Tribunal to decide whether an employee had suffered any form of detriment in breach of PIDA, and if so, whether any award of compensation is due.


Email: Anna Gilbert

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