Compromise agreements have their place in the NHS

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Guidance published today by the NHS Employers organisation aims to help ensure that entirely legitimate compromise agreements are appropriately worded to support both employers and staff.

Produced in association with legal firm Capsticks, the guidance explains why compromise agreements between staff and employers can be a suitable way to support both parties when employment comes to an end.

The main value of these agreements is to protect both staff and employers from expensive, protracted legal proceedings. They can be cost affective and their use is often supported by trade unions. The guidance, called ‘The use of compromise agreements and confidentiality clauses’, says this is important because it can resolve employment issues relatively quickly and can avoid staff and clinicians being distracted by often complex legal processes.

One example of their use is when employment relationships have irretrievably broken down. In those circumstances an agreement can help manage relationships and communications when mutual termination of employment is agreed. They can also save costs associated with employment tribunal proceedings and are used in both the public and the private sectors.

The guidance explains how ‘confidentiality clauses’ should feature in compromise agreements. These clauses can be appropriately used to protect confidential information gained by the employee such as patient records or information about other staff.

However, the guidance states that it is crucial these confidentiality clauses do not leave staff in any doubt about their legal right to speak-up in the interests of patient safety and care. The Public Interest Disclosure Act (PIDA) already protects the right of any staff to speak-up on such issues. For the avoidance of doubt, the guidance says agreements should include "an express provision which permits disclosures that are in the public interest” and suggests appropriate wording.

Dean Royles, chief executive of the NHS Employers organisation, said:

"There has been a lot of debate and discussion recently about the use of compromise agreements and their use in the NHS. It is important to be clear that these agreements help the NHS resolve some issues quickly, in a way that can save money and work well for all parties.

"With over a million employees in the NHS, its unfortunate, but employment relationships sometimes fracture. These agreements help the NHS and individuals avoid expensive and sometimes acrimonious legal proceedings amounting to millions of pounds every year. The process of approval of these agreements helps ensure value for money.

“These agreements need to be written as clearly as possible, so that everyone understands their duty and rights to speak-up for patient care.

"Procedures for staff to raise concerns have progressed a lot and the vast majority of NHS staff now say they know how to raise concerns and that they feel safe to do so. We want this to be the case for everyone, including those signing a compromise agreement.

"Compromise agreements are completely different to so-called 'gagging clauses', which have featured so highly in the press recently and it's important for public confidence that one isn't tarnished by the other.”

The guide can be read here.

The NHS Employers organisation has also published related guidance today called ‘Guidance for employers within the NHS on the process for making severance payments’. This is also available at the above link.

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