Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In today’s post we’re going to look at an issue which has received quite a lot of “air time” in the press recently – protected disclosures, confidentiality (or – as they’ve been termed – “gagging clauses”) and compromise agreements. We’ll have a brief look at the various issues involved, in particular by examining:

  1. What is a compromise agreement?
  2. What is a protected disclosure?
  3. Why all the fuss recently about protected disclosures and compromise agreements?
  4. Doesn’t s.43j of the Employment Rights Act 1996 cover this?

What is a compromise agreement?

First off, a definition of a “compromise agreement”. A compromise agreement is a contract which is regulated by statute. This contract allows for the settling of Employment Tribunal proceedings and/or waiving the employee’s rights to make a claim to the Employment Tribunal in return for the receipt of some benefit to the employee. This benefit can be financial such as a sum of money) and/or non-financial (such as the promise to give an agreed reference to a future employer). There are specific rules regarding what constitutes a valid compromise agreement but we won’t cover these here.

What is a protected disclosure?

Under the ERA 1996 an employee has the right not to be dismissed or subjected to a detriment because they’ve made a protected disclosure. A “protected disclosure” is defined by s.43 of the Act – it is:

  • The disclosure of information which (in the reasonable belief of the worker) shows that one of the following has been, is being or is likely to be committed: a criminal offence, a failure to comply with a legal obligation, a miscarriage of justice, the endangering of the health or safety of any individual or the damaging of the environment;
  • Disclosed to the employer or some other responsible person, a lawyer or a Minister of the Crown; and
  • Made in good faith, with reasonable belief that the information is substantially true and is not for reasons connected to personal gain

Why all the fuss recently about protected disclosures and compromise agreements?

The recent media coverage of compromise agreements and “gagging orders” (more commonly referred to as confidentiality clauses) was spurred by Gary Walker (A former NHS Trust chief executive) breaking cover last week regarding a compromise agreement he had signed in April 2011 which stopped him from disclosing information relating to his employment with his employer’s consent. This, he stated, meant that he wasn’t allowed to disclose information to the media regarding potential malpractice at the NHS Trust that he worked for. Stephen Dorrell then weighed into the dispute, writing to Jeremy Hunt (current Health Secretary) that confidentiality clauses shouldn’t stop employees from highlighting patient safety concerns. Mr Hunt, in return, responded by confirming the same.

Doesn’t s.43j of the Employment Rights Act 1996 cover this?

In light of the above, it would be expected that there had been a legislative oversight regarding the potential for employers to stop employees making protected disclosures after a compromise agreement has been signed. But has there? S.43j of the Employment Rights Act 1996 would suggest not. Under s.43j:

(1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.

(2)This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.

There does not therefore seem to be any bar to a “worker” making a protected disclosure regarding their termination – any provision attempting to stop the worker doing so is void and unenforceable. The only unfortunate part of this is that “worker” isn’t defined under the Act – there’s some ambiguity as to whether an ex-employee can still be a “worker”. This would therefore mean that if an employee had signed a compromise agreement (that hadn’t resulted in the termination of their employment) and subsequently made a protected disclosure then their position would be protected. Again, the only sticking point is as to whether a former employee enjoys the same protection. Storm in a teacup, anyone?

Redmans Solicitors offer expert legal advice from employment law solicitors and settlement agreement solicitors.

logo_website

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.80 Average

    346 Reviews

    Anonymous

    I dealt with Chris Hadrill who was very knowledgeable and professional. To provide some context, I raised a grievance with my Employer and with the help of Redmans received a settlement offer. I have secured alternative employment and would recommend Redmans overall. I was very satisfied with the service I received and would rate it as 5 star.

    Posted 7 hours ago

    Danielle T

    I contacted Redmans in regards to a situation I needed dealing with with my employer. This was resolved within a week of initial contact and I couldn’t be happier. Both Chris and Sacha were brilliant and couldn’t have been more helpful! Thanks guys!

    Posted 1 day ago

    Anonymous

    Quick proccessing of my Redundancy agreement.

    Posted 4 days ago

    Anonymous

    Fantastic support during a difficult time! Chris was fantastic, from the first conversation all the way through a difficult process. Chris supported me with a settlement agreement and his counsel was invaluable. The company I worked for tried to suggest some solicitors that they knew would simply rush through an agreement. Thankfully I found Chris and the Redmans team, what a relief! They fought for me and allowed me to keep my focus on the next stage in my career journey. If I go through anything similar in the future Redmans will be my first point of call!

    Posted 5 days ago

    Anonymous

    Quick responses to all inquiries. Supportive and provided top-notch service. Extremely pleased with the outcome and would recommend to anyone in need of legal advise.

    Posted 6 days ago

    Ben H

    Good, quick and informative service.

    Posted 1 week ago

    Edward W

    I liked Mel Chin's approach to my inctruction. She provided clear advice and explained things in a manner that I understand. I rated her service 5 out of 5.

    Posted 1 week ago

    James B

    Great and prompt service- would recommend and use again!

    Posted 1 week ago

    Emma L

    Excellent service. From start the team where efficient and helpful, the whole process was made easy on a very stressful and upsetting situation. They worked well to support my situation and negotiate. Would highly recommend. Thank you to Chris, Sacha and the team.

    Posted 1 week ago

    Brian H

    I must say, not seeing any of you and doing all on-line works very well. Very pleased with the service and would recommend you. Fantastic service. Many thanks Brian Haines

    Posted 1 week ago

    Sheenu A

    Professionals with excellent quality of work.

    Posted 2 weeks ago

    Maris T

    I recommend Redman's Solicitors. Chris was very helpful and informative. He provided a speedy and efficient service at a reasonable price.

    Posted 3 weeks ago

    Anonymous

    quick response, friendly staff, my issue was smoothly done. superb

    Posted 4 weeks ago

    Anonymous

    Overall I was very satisfied with the service I received. Right from making initial contact to being contacted by Chris Hadrill. He was easy to talk to, friendly and professional and gave sound advice. I would certainly use Redman's again. Thank you for all your help, Chris. I would rate my experience as 5 star.

    Posted 1 month ago

    Jane K

    4 stars for quality of advise. the team are good but it feels rushed sometimes and hard to contact.

    Posted 1 month ago

    Arabella B

    I am so grateful to Caroline Lewis at Redmans Solicitor’s for helping me with my Unfair Dismissal Case. I was seriously impressed how easy Redmans made the whole case, and am very happy with my Settlement. I have recommended your firm to at least 5 people in the last 3 months.. Thank you Caroline and everyone at Redmans. You are Brilliant .

    Posted 1 month ago

    Anonymous

    Highly professional and efficient service.

    Posted 1 month ago

    Tanya T

    I had the pleasure of Chris and Sacha’s experience with a work matter. They made me feel at ease with the process and explained everything thoroughly. Would happily recommend Redmans especially Chris and use them if needed I’m the future. Thank you!

    Posted 1 month ago

    Anonymous

    I used the services of Redmans solicitors and was a quick outstanding service I engaged them in a settlement agreement after been made redundant extremely professional at all that was done and would definetly use them again

    Posted 1 month ago

    Adrian A

    Spot on support, enough to get the matter at hand sorted. No beating around the bush, no nonsense - got the job done and we all moved on.

    Posted 1 month ago

    Mark Q

    Five Stars I was most impressed by the attention, courtesy, speed and above all, professionalism in dealing with my Settlement Agreement. I would certainly have no problem in recommending this firm to anyone in need of their services.

    Posted 1 month ago