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Friday, 03 March 2023 12:50

Settlements, NDAs & Whistleblowing

You have very probably heard the news recently of how journalist, Isabel Oakeshott disclosed thousands of Whatsapp messages between former Health Secretary Matt Hancock and his colleagues, to the Daily Telegraph. The messages have exposed some questionable and embarrassing decisions made by Ministers during the pandemic, threatening the integrity of an ongoing enquiry. Moreover, the disclosure has garnered attention because Ms Oakeshott had allegedly signed a Non-Disclosure Agreement or NDA with Mr Hancock.

NDAs are a common feature in the business world and in terms of HR, they are a component of Settlement Agreements; mainly financial arrangements made between employers and employees to settle a dispute on the proviso that no further action is taken. Ms Oakeshott’s decision to disclose the Whatsapp messages, thereby potentially breaching the NDA, relies on the defence that she is revealing something that is in the public interest and is therefore protected by the 1998 Public Interest Disclosure or Whistleblowing Act

Under the Act, individuals are protected if they bring information that is in the public interest about a wrongdoing to a relevant organisation. Formally known as ‘making a disclosure in the public interest’, the common term for disclosing a wrongdoing is ‘blowing the whistle’, hence the terminology for the legislation.

The legislation was introduced partly so that employees are not discouraged from revealing what might amount to criminal activity about their employers, for fear of unfair treatment at work or of losing their job. We find that whistleblowing is often incorrectly cited by disgruntled employees who claim to be exposing a wrongdoing to strengthen an otherwise flimsy claim against their employer.

The overarching point to remember is that to qualify under the legislation, the disclosure must be in the public interest and must be regarding information where the worker reasonably believes one or more of the following is, has or will be taking place:

  • A criminal offence
  • The breach of a legal obligation
  • A miscarriage of justice
  • A danger to the health and safety of any individual
  • Damage to the environment
  • Deliberate attempt to conceal any of the above

The gov.uk website provides a full list of prescribed people and bodies to which information can be whistleblown and includes organisations such as the Charity Commission, the Children’s Commissioner and the Care Quality Commission. Disclosure directly to the media however would mean that the employee loses any protection that the legislation provides. By going directly to the Telegraph newspaper, Ms Oakeshott may therefore have left herself open to legal action. You can see the BBC report on the case here.

When arranging settlement agreements, illegal activities are not covered. Indeed, no contract can be enforced if the specified activities are illegal. Therefore, any employer acting illegally would not have any recourse if the employee with whom they settled subsequently reported the illegal activity to the police.

Organisations should embrace the whistleblowing legislation and have an appropriate policy in place. It would be usual for employees or workers to approach the employer first to make any disclosure. If they feel unable to do this, they should approach a prescribed person or body to ensure that their employment rights are protected.

If an employee is dismissed or selected for redundancy as a result of whistleblowing then the dismissal is automatically considered unfair and therefore prone to a tribunal claim.

Prevention is better than cure so of course avoiding any reasons for whistle-blowing to occur is obviously the best course of action for employers to take. If however you would like support with preparing or reviewing your whistle-blowing policy or need help with a whistle-blowing case, then please contact us on 01452 331331 or e-mail This email address is being protected from spambots. You need JavaScript enabled to view it.

  

Read 708 times Last modified on Friday, 03 March 2023 13:03

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