What an individual can say in circumstances concerning any ‘issues’ they may have faced in their employment and / or their exit may be determined by what contractual documentation has been signed; for example, if the individual has signed a Non-Disclosure Agreement they may be bound by the terms therein and / or settlement agreements often contain clauses which deal with what is and is not permitted in terms of disclosures. An employment contract and any settlement agreement may detail what can and cannot be said with regards to the use and abuse of any of the employer’s confidential information – and any settlement agreement may also set out what can and cannot be said about any exit, claim(s) and / or colleagues.
Individuals signing any settlement agreement are often asked to sign provisions with regards to non-derogatory comments obligations – agreeing, for example, that they will not disparage or otherwise make any derogatory statement(s) about their employer and / or colleagues that intend or which might have been expected to damage or lower their employer’s and / or colleagues’ respective reputations or bring them into disrepute.
These obligations are often called ‘gagging clauses’ and they have the effect of prohibiting what may be disclosed by the individual about their exit.
Understandably, these commitments can spark emotional reactions from individuals who may feel a sense of injustice if they want to be able to ‘speak out’ about what may have happened in their employment and / or as part of their exit. But, this must be balanced with any employer’s desire to settle matters and keep those matters (as well as any other relevant information) confidential – likely with settlement sums being paid to the individual as part of any severance agreement.
The law and position on confidentiality agreements (including what can be prohibited in terms of disclosures) has been revisited in recent years (notably as part of wider considerations with regards to sexual harassment in the workplace). Solicitors are under an obligation to consider the drafting of any such provisions. The concept of ‘banning’ confidentiality agreements and / or provisions is contentious and unlikely to happen any time soon – even though such agreements and / or provisions can clash with the principle of freedom of speech.
While confidentiality agreements can be legitimately used to protect reputational matters, confidential information (which would likely be defined in any such agreement) and / or commercial issues, they must not be used to prevent any disclosures which (to summarise the position):
(a) report a suspected criminal offence to the police or any law enforcement agency or where an individual is co-operating with the police or any law enforcement agency regarding a criminal investigation or prosecution;
(b) prohibit an individual from doing or saying anything that is required by HMRC or a regulator, ombudsman or supervisory authority (for example disclosing any information to HMRC for the purpose of establishing and paying (or recouping) tax and national insurance liabilities arising from any employment or its termination);
(c) are required as part of any tribunal or court hearing, or as compliance with any order from a court or tribunal for disclosure or to give evidence, or whether required to or not make a disclosure to or co-operate with any investigation by HMRC or a regulator, ombudsman or supervisory authority regarding any misconduct, wrongdoing or serious breach of regulatory requirements; or
(d) otherwise make any other disclosure(s) as required by law and / or any regulatory body.
Any settlement agreement (or other confidentiality agreement) may also permit an individual to speak about certain matters to their spouse, family, friends (often with limitations) and other experts or professionals (e.g. legal advisers, accountants, medical experts and / or counsellors where an obligation of confidentiality is due – and / or to speak to authorities for the purpose of claiming any benefit(s)).
The question of ‘silencing a whistleblower’ via non-derogatory comments obligations can be controversial. While any settlement agreement which seeks to settle any allegation(s) and / or whistleblowing claim(s) may legitimately settle matters concerning any whistleblowing and can restrict what may be said about the matter(s), any future whistleblowing (e.g. to the police, HMRC, any regulator and / or court or tribunal) is unlikely to be ‘caught’ in those provisions.
A question that is often posed by individuals is; “Can I say something truthful concerning my exit?” (the truth being an absolute defence in any defamation claim(s)). It may be prudent to consider specialist Employment and / or Reputation advice in any such circumstances as, while a defence may be relied upon – if a settlement agreement or other confidentiality agreement with non-derogatory comments obligations has been / is being signed and ‘the truth’ may not have been formally established and / or may be tainted with disparaging connotations, (depending on the drafting of the settlement agreement or confidentiality agreement) any breach can trigger repayment obligations (i.e. of settlement sums) as well as other consequences for breach of contract. Therefore the ‘old adage’ of ‘keeping mum’ on all settlement matters may be preferable.
If you wish to discuss any of these topics, please feel free to reach out to any of the team.