Scotland removes confidentially from settlements

Confidentially clauses are an extremely common feature of settlement agreements across all workplaces in the United Kingdom.

The Scottish government have recently decided however that such clauses should no longer be common place for employees leaving the Scottish NHS.

Settlements agreed between NHS staff in Scotland and their employer will no longer automatically contain confidentiality clauses it has been announced.

The Scottish Health Secretary, Alex Neil, has said the measure would help to remove any perception that such clauses are used to prevent staff from speaking out about concerns over patient care.

Settlement agreements are legally binding agreements in which an employee accepts a financial settlement in exchange for waiving the right to pursue a legal case against their employer. They are entered into all over the UK.

These standard agreements currently include a number of clauses including confidentiality clauses, although these cannot be used to stop the reporting of concerns about patient safety or malpractice.

Speaking at the Royal College of Nursing (RCN) activist conference, Mr Neil said: "I have always been very clear that there is no place for gagging clauses in our NHS.

However, while there is a clear difference between gagging clauses and confidentiality clauses, I recognise that there can be a perception that these could be used to prevent staff from speaking out about failures in care offered to patients.

That is why I have taken the decision that a new standard agreement will be drafted, which will remove the automatic inclusion of confidentiality clauses.

These clauses may still be used in some cases, but only where there is explicit agreement between both the employer and employee that this is required.

There is no clause whatsoever that can legally bar anyone from raising their concerns about patient safety and I repeated today that anyone who is currently subject to a confidentiality clause who has any such concerns will not be hindered in any way."

Mr Neil also announced that he is establishing a national team to support health boards to address issues such as bullying and harassment.

The team will set up and maintain a network of mediators that will be available to health boards to offer arbitration at an early stage in complex cases, with the aim of reducing the need for formal dispute resolution.

The measures were welcomed by the RCN Scotland.

Associate director Norman Provan said: "There's a big difference between gagging clauses and confidentiality agreements which is not always understood, so we are pleased that the Cabinet Secretary has today announced the Government's intention to remove confidentiality agreements from standard NHS settlement agreements, unless this is agreed by both parties."

The issue of confidentiality clauses in settlement agreements was also raised at First Minister's Questions in Holyrood by Labour MSP Ken Macintosh.

Mr Macintosh highlighted the rise in the number of settlements since the SNP came into power.

He said figures he has gathered under Freedom of Information show that in 2007/08 there were four settlement agreements in the NHS in Scotland at a cost of £130,000.

He said the figure has risen every year since, with settlement agreements totalling 143 last year alone, at a cost of £3.5 million.

Every settlement except one, according to Mr Macintosh, has a confidentiality clause.

First Minister Alex Salmond said the announcement, alongside other measures, "demonstrates this Government's commitment to allow people within the health service to report their concerns without fear or favour".

If this approach were to be adopted across the UK, it would effect many thousands of settlement agreement cases. It could also bring untold issues and later disputes between employers and employees in relation to disputes that may be properly regarded as confidential.

It will be interesting to see if the NHS in England and Wales adopt this practice.

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