Experts fear freedom of speech at work is being compromised, as councils sign 17,500 settlement deals in five years
The use of confidentiality clauses may have become ‘routine’ in local government, new figures suggest, with experts raising concerns that whistleblowers are being silenced and money wasted as a result.
Figures compiled by the BBC found that 17,571 settlement deals were signed between councils and local authorities and departing employees from 2010 to 2015. Their use is commonly associated with enhanced payouts and confidentiality clauses (or ‘gagging orders’) that prevent people from speaking out about why and how their employment ended.
David Lewis, professor of employment law at Middlesex University, said: “Some councils could be using gagging orders routinely, but the BBC’s data is incomplete. It’s going to have a really negative effect on workplace culture if organisations encourage openness but require those who leave to sign gagging orders. Restrictions on the human right to freedom of speech need to be justified.”
The use of such clauses varied widely between organisations: Cardiff Council, the single largest user, deployed gagging orders 3,000 times over the five-year period, suggesting that it expected most departing employees to sign one. In total, the 17,000 settlement deals carried a value of £226.7 million, though how much of this went beyond mandated termination payments is unknown.
In February 2015, Cabinet Office guidance suggested that central government departments should use confidentiality clauses only in “exceptional” circumstances – this should follow legal advice and take place only where there is mutual agreement that it would be in the best interests of both the employee and employer.
Many of those signing such agreements will have left in controversial circumstances, including those who raised concerns about malpractice. Meg Hillier, chair of the Public Accounts Committee, told the BBC: “There can be no excuse for silencing people who've got a legitimate concern. If an employee is being told they can't talk about something and bought off, that's not an acceptable use of these settlement agreements.”
Lewis said he believed that HR professionals in the private sector, as well as the public sector, sometimes came under pressure from senior executives to deploy confidentiality clauses when they were not appropriate. But he said the bigger issue was that people simply didn’t know the scale and nature of their use: “UK legislation on gagging orders and whistleblowing generally is not publicised enough, so there’s a lack of understanding about what is protected and what isn’t.”