1) How many compromise agreements has the Trust entered into with staff or former staff? Please include all COT3 agreements in this figure. The Trust is recording 5 COT 3 agreements.
2) How many of these compromise agreements require staff members not to disclose the existence of the compromise agreement itself? Five
3) How many of these compromise agreements contain non-disparagement clauses that require staff members not to criticise the employees of the Trust? Four
4) How many of these compromise agreements were entered into by the Trust with staff who had previously made public interest disclosures, (whether or not these were raised by formally invoking the Trust’s whistleblowing policy)? The Trust is not aware of any previous public interest disclosures made in these agreements.
5) If staff who have entered into a compromise agreement with the Trust were to voice concerns about reprisal by the Trust for whistleblowing, would the Trust consider this to be an actionable breach of non-disparagement clauses, or would it consider the raising of such concerns to be qualifying disclosures under PIDA?
The Trust takes all whistleblowing concerns very seriously. Whether a staff member’s comments about reprisals for whistleblowers was a breach of a non-disparagement clause or the agreement more generally would depend upon the comments and the allegations/ claims that had been compromised by the agreement. The Trust’s compromise agreements, whilst containing confidentiality clauses, do not seek to prevent public interest disclosures. The Trust’s use of confidentiality clauses and non-disparagement clauses is in accordance with NHS Employers’ guidance. Since January 2012 and upon receipt of the issue of Sir David Nicholson’s letter to Chairs of all NHS organisations on 11 January 2012, the Trust’s compromise agreements all make it explicitly clear that nothing in the agreement prevents an employee from raising legitimate concerns about patient safety, or other issues, in the public interest under the terms of PIDA. The wording used by the Trust is: “ For the avoidance of doubt, nothing in this Clause [x] specifically and nothing in this Agreement generally, 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.”