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NHS employers guidance on confidentiality clause and the process for making severance payments

Following the recent publicity surrounding the use of confidentiality clauses in the NHS and Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry by Robert Francis QC, the NHS Employers organisation has in April 2013 published new guidance on:

• Compromise agreements and confidentiality clauses click here and

• the making of severance payments click here

       The Guidance on compromise agreements and confidentiality clauses includes sections on:

• when to use a compromise agreement may be used;

• an example clause relating to whistleblowing which should now be included in all agreements;

• the types of confidentiality clauses that can be legitimately used.

The suggested whistleblowing clause may also be of use for those employers who are outside of the NHS but employ staff in nursing or caring roles.

For the avoidance of doubt, nothing in this Agreement shall prejudice any rights that the Employee has or may have under the Public Interest Disclosure Act 1998 and/or any obligations that the Employee has or may have to raise concerns about patient safety and care with regulatory or other appropriate statutory bodies pursuant to his or her professional and ethical obligations including those obligations set out in guidance issued by regulatory or other appropriate statutory bodies from time to time.

The Guidance on severance payments includes sections on:

• When approval is required from  HM Treasury

• The list of National body which must give approval for special severance payments.

• What information should be included in a proposal to the NHS body’s remuneration committee.

This guidance states that written advice should be taken by NHS employers for all severance payments from the relevant trust’s auditors and legal advisors.

Both of these sets of short Guidance will be essential reading for all those who represent any NHS employer or employee in an employment case. As the media coverage following the Robert Francis QC Inquiry has shown, the stakes are high if stricter gagging clauses are included than those permitted under this Guidance.

kapps@littletonchambers.co.uk

Katherine Apps is a member of Littleton Chambers’ Disciplinary and Regulatory Group (DRG).  For more information about our DRG Group or to instruct one of our barristers please contact the clerks on clerks@littletonchambers.co.uk or 02077978600.