THE BLOG

NHS Gagging Clauses

17/02/2013 12:02 GMT | Updated 18/04/2013 10:12 BST

The debate over so-called "gagging clauses" in NHS employment disputes rumbles on, doubtless fuelled by the outcome of the Mid Staffordshire inquiry. In an emotional, knee-jerk reaction, calls for a ban on such "gagging clauses" are reaching fever pitch.

For readers who have never been involved in legal wrangles with employers, or anyone else, yet may feel tempted to hold an opinion on something they know next to nothing about, I present an extremely abridged and incomplete overview of how things often work:

  1. An employee enters into a dispute with their employer, and they part company on bad terms. The rights and wrongs of the dispute are irrelevant for these purposes; it is enough to know that employer and former employee are at loggerheads.
  2. The ex-employee, feeling aggrieved, begins legal proceedings against their former employer, who, also feeling aggrieved, defends the action to the hilt. At this point, they become Claimant and Respondent, respectively.
  3. Legal (un)pleasantries are exchanged, forms are filled in, witness statements are obtained, and documentary evidence is requested from various parties.
  4. The Claimant may begin to realise that, firstly, these things take a very long time which could be more usefully and enjoyably spent doing almost anything else, and, secondly, that lawyers are very, very expensive.
  5. The Respondent, in all probability, begins to realise the same things.
  6. At this point, and at all points during the proceedings right up to and including final hearings, the parties have a choice. They can fight on to the bitter end, each convinced that they are in the right and that having their day in court is worth any amount of time, money, inconvenience and stress, or they can come to an agreement amongst themselves to end the proceedings here.
  7. This is usually referred to as "settling" the case, and often involves the Claimant receiving a sum of money - and, perhaps, some additional promises or undertakings to do, or not do, certain things - from the Respondent in exchange for the Claimant making some promises of their own. The nature of these undertakings, and any sums to be paid, are largely at the discretion of the parties; no party need agree to anything they don't like, and there is usually a great deal of back and forth negotiation between the parties before they arrive at something they're all happy with.
  8. If agreement is reached, it goes before the court / tribunal hearing the case, where it is checked over for obvious problems - for example, the parties can't agree to anything illegal, amongst other things. Assuming all is well, the court makes an order, called a Consent Order, in which the terms of the agreement become legally binding on the parties involved.
  9. It is important to understand that, at this point, there has been no finding of guilt or innocence in the case and neither party has been found to be right or wrong (unless some kind of admission is made in the Consent Order) - they have simply agreed to stop fighting.
  10. It is likely that the Claimant has made, or intends to make, allegations against the Respondent which, whether they are true or false, may be damaging to the Respondent's reputation. Consequently, it is not unreasonable for the Respondent to seek to protect that reputation by making the Claimant's ongoing silence a condition of their settlement - the so called "gagging clause". After all, where would be the point in the Respondent settling the case, and paying lots of cash to someone whose allegations they vigorously deny, if the Claimant can go right on making those allegations - perhaps even using the Respondent's own money to do so?

So there you have it - "gagging clauses" in a nutshell. The important take away point is that nobody is forced to settle a case - they're called Consent Orders for a reason!

If the Claimant believes that the public interest is best served by bringing their disagreement with the Respondent into the public arena, there is absolutely nothing to stop them taking their case to hearing. There, in open court, under cross-examination, in witness statements and through exhibited evidence, they are free to rehearse every aspect of their case before the judge / chairman, citizens lurking out of the rain in the public gallery and creatures of the press looking for a story. Subject to orders to the contrary, it will all become public knowledge that can subsequently be quoted, reproduced and generally disseminated as needed, without a gagging clause in sight - it's whistleblowing Nirvana, but might cost the Claimant a fortune if they lose.

On the other hand, if the Claimant settles their case, they might make a tidy profit, but they cannot expect a second bite of the publicity cherry in the name of the public interest. They have agreed to remain silent, and to the consequences of breaking their word - for that is what it amounts to - and they have, in many cases, pocketed a substantial sum for the privilege. In doing so, they have effectively sold their right to discuss certain things.

You would not expect to buy a second hand car, only to see the (former) owner drive it away with your money in the glove compartment, so why should a former Claimant, now in whistleblower's garb, make off with the Respondent's cash while singing like a canary? Moreover, if they couldn't keep the word they sold, why should we believe the allegations they subsequently make for free?

Ironically, if "gagging clauses" were to be banned, these individuals would probably lose the most. With the primary incentive to settle removed, Respondents are far more likely to fight on to hearing in the hope of winning. Only the lawyers - who get paid win or lose - stand to profit. I wonder how many of them are actively campaigning for the proposed ban?