NHS to be banned from using NDAs to gag whistleblowers

23 Apr 2019 By Maggie Baska

Health secretary pledges end to use of gagging orders, to encourage staff to speak up

Gagging orders for whistleblowers will be banished from the NHS, the health secretary has pledged, in an effort to encourage more staff to “put their head above the parapet”.

Matt Hancock said he wanted to outlaw the use of non-disclosure agreements (NDAs) that silence healthcare workers who raise safety concerns or make complaints of harassment or workplace bullying. 

He told The Telegraph he was “determined to end” the injustice of making NHS staff choose between speaking out or keeping their jobs. 

“Whistleblowers perform a vital and courageous service for the NHS, and I want more people to feel they can put their head above the parapet,” Hancock said. 

“Settlement agreements that infringe on an individual’s right to speak out for the benefit of patients are completely inappropriate. We stand with whistleblowers. Making someone choose between the job they love and speaking the truth to keep patients safe is an injustice I am determined to end.”

In March, the government announced tougher legal measures to prevent employers using NDAs to stop workers from reporting crimes, harassment or discrimination.  

The changes include a legal clarification that confidentiality clauses will not prevent individuals from speaking to the police regarding criminal behaviour, or prevent information from being disclosed during any criminal proceedings. 

Employers will also be required to provide an employee with a clear, written description of their rights before anything is signed regarding confidentiality clauses within contracts of employment or in settlement agreements. 

Many businesses deploy NDAs and other confidentiality agreements for legitimate reasons, but recent investigations from the parliamentary women and equalities committee fuelled concerns that some are using gagging orders to silence whistleblowers. 

The government’s proposed changes will also ensure workers who consent to a settlement agreement are entitled to independent advice, in an effort to prevent employees from being ‘duped’ into signing gagging orders they were not fully aware of. 

The NHS reforms appear to go further, and come after radiographer Sue Allison successfully argued she had been asked to sign an NDA without legal advice after raising concerns about standards of care at Morecambe Bay NHS Foundation Trust. 

She filed a grievance against the trust, claiming she had been bullied after complaining about cases of missed cancer diagnoses and standards of care in a breast screening unit in 2012. 

An employment tribunal declared her NDA was invalid and Allison could continue with her claim against her former employer for whistleblower detriment. 

Hundreds of NHS whistleblowers have also suffered repercussions after speaking out, according to figures published in 2018 by the National Guardian’s Office (NGO), the NHS whistleblowing body.  

The NGO reported that 356 NHS whistleblowers said they experienced a range of reactions varying from “subtle” punishments, such as being denied career opportunities, to being unjustly fired during 2017-18 . 

NHS doctors were among the worst affected staff members, many of them being dismissed for speaking out about malpractice such as bullying, unsafe staffing levels or fault medical equipment. 

The government is currently consulting on the wider use of NDAs and confidentiality clauses involving victims of workplace harassment or discrimination, and is recieving submissions until 29 April. The consultation aims to assess what changes are required to ensure workers are appropriately protected from their misuse.

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