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NDA’s put public at harm and stop whistleblowers speaking out

Protect is calling on clearer legislation surrounding NDAs (non-disclosure agreements) it says is preventing whistleblowers from speaking out over gagging fears and threats of legal costs.

Protect (formerly Public Concern at Work) is calling for clearer wording for 43J of the whistleblowing law, the Public Interest Disclosure Act (PIDA).  It wants all NDAs, or settlements, to contain set wording to read; ‘for the avoidance of doubt, nothing should preclude (the employers name) from making a ‘protected disclosure’.  This should be a regulatory requirement in every sector, following the lead of the Financial Conduct Authority who has made this a requirement for all settlement agreements used by banks.

Protect is also calling on the legal profession to push back against any organisation that seeks to use NDA’s as a means of shielding wrongdoing.  What’s more lawyers should be required to give advice to whistleblowers about the fact no NDA will prevent them from raising a public interest whistleblowing concern.  Without this advice many workers are unaware of their rights in this area given the low awareness in the workforce around whistleblowing rights (68% of workers either were unaware of or wrongly believed there’s no legal protection for whistleblowers.

Following the Sir Philip Green NDA debacle, NDAs have once again hit the headlines over the use of NDAs in the NHS. An anonymous radiographer has told BBC Radio 4 they were fearful of speaking out and made to sign an NDA.

National Guardian Dr Henrietta Hughes, who oversees speaking up in the NHS, told the BBC Radio 4 Today programme, “I think it’s a great concern that staff who leave employment under a settlement agreement believe they don’t have the right to speak up. It’s enshrined in the PIDA law that workers who have concerns about safety do have the right to speak up but the wording of settlement agreements can be so opaque that people don’t believe that they have those rights.

She added, “They may be legally accurate, but the implication is that workers fear if they do speak up they may be liable to return an amount of money or even be liable for legal costs as well. I think its absolutely important we stop this.”

Protect Chief Executive, Francesca West said, “The Philip Green case and recent NHS case highlighted on Radio 4 – as well as the many, many calls we receive to our advice line from the health sector –  just go to show how we now need a complete overhaul of PIDA to ensure whistleblowers can safely speak out, to stop harm.”