If you are an employee and report certain types of misconduct, you may be classified as a whistleblower and fall under the Whistleblower Act. Confidentiality clauses in settlement agreements are common and are generally intended to prevent employees from disclosing information about the settlement, the amounts the employee receives under the agreement, and the factual history leading to the settlement. These clauses are sometimes referred to as “non-disclosure agreements” (NDAs) or “gag clauses”. Before starting an early arbitration or taking legal action in the Labour Court or at any time until the day of the last hearing, you can send your employer a letter “without prejudice” offering them a settlement agreement. In UK labour law, whistleblowing is “protected disclosure” under the Public Interest Disclosure Act (PIDA). This Act itself amended the Employment Rights Act 1996 so that it is the 1996 ERA that you can also refer to. In exchange for signing a settlement agreement and waiving some of their legal rights, the employee receives a lump sum compensatory payment, which is usually higher than what they would receive if they went to court. If you are asked to sign a settlement agreement that includes a confidentiality clause, you should be aware that there are limits to what can be legally gagged by your employer. In fact, as you will read below, confidentiality clauses cannot be used to intimidate or silence whistleblowers. Many organizations have a whistleblower policy that describes how disclosure can be made. The Directive should also focus on how internal whistleblowers are protected. If you wish to disclose the notice after signing a settlement agreement, it is best to consult legal counsel beforehand to avoid violating any confidentiality clause of the agreement.
Whistleblowing is a complex and technical field. For example: It is very difficult to gather enough evidence to prove inconvenience or dismissal for denunciation and then ensure that this evidence meets the very complex legal criteria. In a normal case of wrongful dismissal, your employer has the immunity to disclose conversations with you about your departure from employment in court in exchange for a settlement payment. However, with whistleblowing claims, this extra protection for the employer goes out the window, and the only way to keep these discussions away from the judge`s ears (if the case ever goes to court) is to pretend that they were without prejudice. Basically, an employer never has a guarantee that you won`t report them, even after signing an agreement. For example, you can`t get the settlement money back because you reported your fraud after receiving your settlement payment. Similarly, your employer cannot use any legal mechanism in the settlement agreement to prevent you from taking any of these steps. For example, under the terms of the regulations, you may not be asked to guarantee that you do not know any reason why you are reporting under the Public Interest Disclosure Act, 1998 if you are not. The amounts of money paid under settlement agreements vary considerably, both in terms of the amount and method of payment. These often include: Normal length of service requirements do not apply in a whistleblowing case, so if you normally need to be employed for 2 years to request a disguised or unjustified termination, there is no minimum service requirement in a whistleblowing case. This is very useful to help you overcome this 2-year service rule in a trial (or court).
However, there must therefore be an element of confidence in the regulation of a whistleblower claim. For this reason, it is all the more important not to burn bridges. It is important to set up a strong and accurate ET1, which is the labour court application form and a document with “claim details” for use in denouncing labour courts. This is the document with which your trial begins – see the examples in our labour court application templates. Settlement agreements are usually a good thing! They can provide a much-needed clean break between you and your employer and avoid having to go to court for months and pay high legal fees. It is not uncommon for employers to settle for even larger sums of money than employees would normally receive when settling their claim in the labour court. If you are treated unfairly after a disclosure, be sure to seek legal advice as soon as possible. An action before the Labour Court must be brought within three months, less than one day after the unjustified treatment or dismissal.
Once the action has been brought by the labour court, the judge can offer you and your employer free judicial mediation. It`s usually a good idea to adopt court mediation (or ask for it if you haven`t been offered it), as it will save you time and money. Judicial mediation is also a low risk, because even if it fails (i.e. no agreement is reached), your case will still be brought to a hearing. Typically, a settlement agreement provides that an employee receives a sum of money (the “termination payment”) in exchange for the trap of certain claims against the employer. In most cases, you should make a disclosure of the information to your employer. After a disagreement or problem in the workplace, employers can propose a settlement agreement to the employee concerned. Your employer can first contact you with a comparison offer, but you can also start the process yourself. There are three ways to reach a settlement agreement with your employer. If there are properties that you have used during your employment that you want to keep (for example. B a company car), you can negotiate the property according to the terms of the regulation. Whistleblowing is a way to ensure that your employer`s misconduct ends when you leave your job and hopefully get a settlement agreement to help you until you get a new job.
Settlement agreements often contain confidentiality clauses (commonly referred to as “gag clauses”) that prevent the employee from speaking of employer misconduct. Your employer could ask you to give them compensation (i.e. a promise to pay them compensation) if you choose to violate the terms of the settlement agreement and bring an action in the labour court for essentially the same reasons. Note that your employer`s contribution to attorneys` fees is usually intended to provide advice on the technical details of signing settlement agreements, rather than whether or not you should sign one. If you need advice on the latter or if you would like a financial assessment of your claim, you should speak to a lawyer. Yes, you can! As you saw in the previous section, section 43J of the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998, provides that any clause in a regulation that attempts to prevent employees from making protected disclosures is void. So even if you have signed a settlement agreement that claims to prevent you from reporting, you are still legally able to do so. Before you file your claim against your employer in the Labor Court, you must begin early arbitration with ACAS – a free process that helps the parties resolve disputes. This is an entirely voluntary process, so your employer may not participate at all, in which case you can make your claim. If your employer chooses to participate, ACAS will help you reach a settlement agreement.
Settlement agreements don`t explicitly state that you can`t report your employer to the authorities, but that would indeed be the compromise you would make if you decided to accept a payment from them in exchange for a silent departure. This is a difficult point to understand and implement in practice. If your employer has offered you a settlement agreement, it is imperative that you seek independent legal advice before signing it, otherwise the agreement will not be legally valid. If your employer does not cover the cost of any fees you may incur, you will need to speak to a lawyer or union representative. Unfortunately, the law on confidentiality agreements is vague and the reform is long overdue. Protect calls for reforms to prevent the use of gag clauses and ensure legal advice on confidentiality issues for whistleblowers facing settlement agreements. .