It was reported on Radio 4’s Today Programme last week that a NHS whistleblower had been “gagged” as part of a £500,000 compromise agreement. Gary Walker, a senior NHS manager ostensibly sacked for “swearing too much” in meetings, was reported to have agreed to a settlement worth £320,000 plus legal costs ” linked to a gagging clause so secret that he is forbidden from even discussing its existence” : see BBC. Mr Walker had apparently blown the whistle by raising concerns about patient safety prior to his dismissal.
The story proceeded on the footing that the so called “super-gag clause” was fully effective. It is hard to see how it could be, however: section 43J of the Employment Rights Act 1996 (“ERA 1996”) provides that “any provision in an agreement [between a worker and his employer, including an agreement to refrain from instituting or continuing proceedings…] is void in so far as it purports to preclude the worker from making a protected disclosure”. If Mr Walker, having pocketed his £320,000, made a protected disclosure under s.43F or 43E of the ERA 1996 about the safety concerns that lay behind his original whistleblowing, any contractual provision in his compromise agreement purporting to prevent him from doing so would be void. It may be that this was not an argument that Mr Walker would want to run, however: if some specific amount of his substantial pay-off was paid in return for a void “super-gag” clause, the Trust would probably – subject to a defence of change of position – have a claim for its return as money had and received, having been paid under a void contract.
The story also highlights the commercial risks of insisting on such clauses: the whiff of a cover up often provides a more compelling scent to journalists than whatever comprised the original “scandal” (a point exemplified by Ryan Giggs’ attempts to secure a superinjunction ).