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.

Annex A


1.1 The Employee agrees that he/she will continue to be bound by the terms and conditions of employment which relate to confidentiality.

1.2 The terms and conditions of this Agreement are confidential to all parties and all parties agree that all matters relating to the termination of the Employee's employment and all circumstances leading to the termination of the Employee's employment will remain confidential between the parties and their appointed representatives, and will not be revealed to or discussed with any other parties, with the exception of: (i) the Employee's immediate family provided that the Employee has obtained their agreement to keep the information confidential; (ii) HM Revenue & Customs and any other statutory bodies; (iii) any other person to whom the employer is bound to report, or (iv) as required by law, including any court or tribunal, or as required in relation to appearance as a witness in any court or tribunal. In particular, no information will be given to the media either directly or indirectly.


1.3 The Employee will not at any time in the future make any detrimental or derogatory statements about matters concerning the Employer, its employees or directors, his/her employment with the Employer, or the termination of that Employment.

1.4 The Employer will take reasonable steps to ensure that its employees do not make any detrimental or derogatory statements regarding the Employee. The Employer's obligations in this regard will be fully discharged by the sending of an email, the text of which will be as set out at Schedule 3, to the following persons within seven days of the signing of this Agreement by the Employer: INSERT NAMES. For the avoidance of doubt, the sending of that email will not be a breach of the foregoing clause regarding confidentiality.


1.5 For the avoidance of doubt, nothing in this clause, nor in this Agreement generally, shall prejudice any rights that the Employee has or may have under the Public Interest Disclosure Act 1998 (sometimes referred to as whistleblowing rights) and/or any obligation that the Employee may have or raise concerns about patient safety and care with regulatory or other appropriate statutory bodies pursuant to his professional and ethical obligations including those obligations set out in guidance issued by regulatory or other appropriate statutory bodies from time to time.

1.6 With regard to the confidentiality obligations generally on either party in this clause, nothing in those obligations shall prevent this Agreement from being subject to appropriate scrutiny by a statutory body tasked with the scrutiny of public bodies such as Audit Scotland or the Public Audit Committee.


Email: Anna Gilbert

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