• Welcome to the LegalBeagles Consumer and Legal Forum. Please register to get the most out of the forum. Registration is free and only needs a username and email address.
  • LegalBeagles® is a free forum, founded in May 2007, providing legal guidance and support to consumers and SME's across a range of legal areas.

    Please do not post your full name, reference numbers or any identifiable details on the forum.

NDA's and protected disclosures

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • NDA's and protected disclosures

    Hi,

    I am hoping to get some information on gagging orders/NDA’s with regards to public disclosures.

    The claimant in this case was a whistle blower who raised a serious public safety incident with her employer. The claimant was then was threatened with their job and made an "anonymous" whistle blower by HR. The claimant was never anonymous as they had gone to HR in person then sent a follow up signed letter of complaint. It was also against the employer's own whistle blowing policy at the time to make whistle blowers anonymous, as the disclosure would be less powerful”. This is from the employer’s policy at the time.

    "Concerns expressed anonymously are much less powerful, but they will be considered at the discretion of XXXXXXX"

    The claimant finally left, started litigation and filled in the ET1 form

    The managers involved in the intimidation, were the same managers investigating the whistle blowing case. Hence they were investigating themselves. The claimant had recorded and written evidence to the admittance of serious failures of safety to the public.

    The protected disclosure was admitted and is documented in the employers (respondents) "amended response" to the tribunal, so the question of it being a protected disclosure was not even up for debate.

    Just before getting to employment tribunal, the claimant was threatened with a costing order of thousands if they lost the case. An NDA was then sent to the claimant which included such things as being gagged from speaking to anyone other than family, from making an SAR (subject access request) and asked them to destroy documents. To name just a few.

    The claimant had no solicitor until the final few days. In a pre-hearing for documents that were not being disclosed, the claimant was advised by the Judge to be mindful that this was "public money" and advised the claimant to go to the citizens advice bureau before making a schedule of loss. The claimant was not aware that there were connections between the employer and the citizens advice bureau at the time.

    The claimant was given the name of a solicitor they could use for a few hours help. Although the claimant advised this solicitor that they thought the gagging agreement was void in the case of a protected disclosures, the solicitor advised them that they were in fact normal.

    This disclosure was a serious public safety issue that had been highlighted throughout the press and media for several years.......Are gagging orders valid in such a case? Any advice would be appreciated.
    Tags: None

  • #2
    Aren't there two questions here?

    1. Can an NDA prevent a person making public serious concerns about safety?

    2. Can an NDA prevent a person discussing the compromise agreement concerning an unfair dismissal case.


    I am not an expert but NDAs about compromise agreements are very common, and I would expect one to work in this case.

    In relation to the first question I doubt an NDA can shut up a determined whistle blower, but maybe somebody better qualified can give a definitive answer. In practice, I cannot see a public body trying to enforce an NDA in this way, in any case. But maybe I am being overly hopeful. Once the cat is out of the bag ...

    did you get a better answer on any of the other forums you've asked this question on?

    Comment


    • #3
      Blimey- well I don't believe an NDA can remove legal rights such as the point regarding the Data Protection Act.

      I dont think for for a moment CAB would have misadvised/misdirected because of links with the employer - and a solicitor couldn't - it is pretty standard in ET cases to have NDAs in settlement but with whistleblowing it should have been looked at with the bigger picture in mind.

      Is this actually a public authority which could be subject to Freedom of Information rules ?

      Has the ex employee taken the whistleblowing complaint t to authority/ regulator ? Before or after the dismissal ( or was it resignation/constructive dismissal claim at the ET ?)

      was the Judge award of the whistleblowing issue and did they pass any comment of whether it would be deemed a protected disclosure ?

      Does the ex employee actually retain the evidence of a) the original issues and b) that they whistle blew before the dismissal ?

      https://www.icsa.org.uk/knowledge/go...ed-disclosures
      “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

      Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

      Received a Court Claim? Read >>>>> First Steps

      If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

      Find Solicitors offering fixed fees on our sister site - JustBeagle.com

      Comment


      • #4
        Originally posted by 2222 View Post
        Aren't there two questions here?

        1. Can an NDA prevent a person making public serious concerns about safety?

        2. Can an NDA prevent a person discussing the compromise agreement concerning an unfair dismissal case.


        I am not an expert but NDAs about compromise agreements are very common, and I would expect one to work in this case.

        In relation to the first question I doubt an NDA can shut up a determined whistle blower, but maybe somebody better qualified can give a definitive answer. In practice, I cannot see a public body trying to enforce an NDA in this way, in any case. But maybe I am being overly hopeful. Once the cat is out of the bag ...

        did you get a better answer on any of the other forums you've asked this question on?
        Only tried one other forum and not had an answer there yet. Will keep going till I find an expert, but thank you

        Comment


        • #5
          Originally posted by Amethyst View Post
          Blimey- well I don't believe an NDA can remove legal rights such as the point regarding the Data Protection Act.

          I dont think for for a moment CAB would have misadvised/misdirected because of links with the employer - and a solicitor couldn't - it is pretty standard in ET cases to have NDAs in settlement but with whistleblowing it should have been looked at with the bigger picture in mind.

          Is this actually a public authority which could be subject to Freedom of Information rules ?

          Has the ex employee taken the whistleblowing complaint t to authority/ regulator ? Before or after the dismissal ( or was it resignation/constructive dismissal claim at the ET ?)

          was the Judge award of the whistleblowing issue and did they pass any comment of whether it would be deemed a protected disclosure ?

          Does the ex employee actually retain the evidence of a) the original issues and b) that they whistle blew before the dismissal ?

          https://www.icsa.org.uk/knowledge/go...ed-disclosures

          Thank you so much for replying. I am trying to find any case law on NDA's and protected disclosures. What I have seen from the SRA link below is the following:

          We consider that NDAs would be improperly used if you sought to:
          • use an NDA as a means of preventing, or seeking to impede or deter, a person from:
            • reporting misconduct, or a serious breach of our regulatory requirements to us, or making an equivalent report to any other body responsible for supervising or regulating the matters in question
            • making a protected disclosure under the Public Interest Disclosure Act 1998
            • reporting an offence to a law enforcement agency
            • co-operating with a criminal investigation or prosecution.
          https://www.sra.org.uk/solicitors/co...ng-notice.page


          So the Solicitors Regulation Authority (SRA) consider it "improper" to use an NDA in protected disclosure cases..........Also is gagging someone from making a Subject Access Request (SAR) taking away a legal right in the DATA Protection Act?

          FOI requests can often be denied from what I have been told.

          The whistle blower went to the Government who passed them to external audit. The external auditors said was it was not in their remit and passed them to internal audit who said was they would not be not investigating, but rather leaving it to the employers to investigate. The internal audit refused to take the evidence, but instead asked asked if documents had been destroyed.
          MP's and Councillors were also contacted from both main parties and other bodies were contacted.
          The claimant finally went to the media, but they wanted to see certain documents as evidence and the claimant had been threatened with Data Protection by the employers, so declined. The claimant then filled in their ET1 form.

          There was substantial evidence including a recording where a Manager admitted the seriousness and that is was a public safety concern. It was admitted very early on in litigation and in tribunal documents by the employer that the claimant had made a protected disclosure.....so this does not even need debating.

          As already mentioned the whistle blower left after being made "anonymous" and threatened with their job.

          The claimants recollects that the Judge did mention the protected disclosure in a pre-hearing for documents that the employers were withholding......The Judge asked why the claimant wanted certain documents and the Judge pointed out that the employer had already admitted it was a "protected disclosure". The claimant replied that there was a "cover up" going on and had stated so in their "further particulars"

          The reason why the claimant wanted further evidence was that they had been advised initially by Managers that no one knew about the failing, but the whistleblower had evidence that people at the top of the organisation knew and had been included in emails.......more recently the claimant has been told the failings had been happening for three years, but that would need further investigating to prove.

          Hope that clarifies a bit more
          Last edited by Anonymous122; 10th October 2018, 06:55:AM.

          Comment

          View our Terms and Conditions

          LegalBeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website. By using this website, you are consenting to such use.To find out more and learn how to manage cookies please read our Cookie and Privacy Policy.

          If you would like to opt in, or out, of receiving news and marketing from LegalBeagles Group Ltd you can amend your settings at any time here.


          If you would like to cancel your registration please Contact Us. We will delete your user details on request, however, any previously posted user content will remain on the site with your username removed and 'Guest' inserted.

          Announcement

          Collapse

          Employment Law

          Are you having problems with your employer ?
          See more
          See less

          Court Claim ?

          Guides and Letters
          Loading...

          upgrade to vip

          Want exclusive access to forums, more privacy and a live chat box? Upgrade to become a bigger part of our community.

          only £15/yr

          Offers available. No subscription traps.

          sign up now



          Search and Compare fixed fee legal services and find a solicitor near you.

          Find a Law Firm


          Working...
          X