Whistleblowing and gagging clauses

This article was previously published on the Leadership Foundation website.

Of potential interest to governors as well as clerks and secretaries is a recently issued House of Commons Briefing Paper (CBP 7422 ), which provides an overview of the protection under the Employment Rights Act 1996 for workers who disclose information and malpractice at their workplace (whistleblowing). The CBP details the operation of the Public Interest Disclosure Act 1998 and draws attention to subsequent changes to the law.

The 1998 Act amended the Employment Rights Act 1996 to protect individuals from suffering detriment as a result of having made a ‘protected disclosure’ i.e. information which it is reasonable to expect will show one of a number of failings. For example, a criminal act has been committed, health and safety of an individual is being endangered or the environment has, or is, being damaged.

If the information disclosed is protected then the generally duty of confidentially between between the employer and employee is put to one side. If the information disclosed by the whistleblower is not protected, then the employee may be in breach of the duty of confidentially.

The briefing paper also considers the use of gagging clauses (in ‘compromise agreements’), primarily in the context of the National Health Service, and notes that the Employment Right Acts 1996 means gagging clauses are unenforceable in so far as the preclude the making of a protected disclosure.

The CBP contains a link to Public Concern at Work (PCaW), a charity set up in 1993 which provides helpful resources and an advice line on whistleblowing.

In respect of governors and whistleblowing, the CUC Code of Governance suggests a governing body should ‘approve a whistleblowing policy’ and could consider seeking assurances, possible through the Audit Committee, that whistleblowing is being effectively managed. While the Scottish Code of Governance provides guidance on whistleblowing in an annex (A1) to the Code.