Whistleblowing and gagging clauses

The Public Interest Disclosure Act 1998 came into force on 2 July 1999. The Act protects workers who disclose information about malpractice at their workplace, or former workplace, provided certain conditions are met. The conditions concern the nature of the information disclosed and the person to whom it is disclosed. If these conditions are met, the Act protects the worker from suffering detriment or dismissal due to having made the disclosure. If the conditions are not met a disclosure may constitute a breach of the worker’s duty of confidence to his employer.

This legal framework has received some criticism in recent years for failing to protect some whistleblowers and there have been a number of calls for reform. Two Private Members’ Bills in 2022 – one by Mary Robinson MP (Con) and the other by Baroness Kramer (LibDem) – proposed to entirely replace the current legal framework with a new one based around a new “Office of the Whistleblower”, with both civil and criminal penalties for breaches. An unsuccessful amendment to the Economic Crime and Corporate Transparency Bill 2022-23, supported by the Labour Party, also proposed to create an office of the whistleblower. The Government has acknowledged that the law may be in need of reform and on 27 March 2023 launched a Review of the whistleblowing framework to assess evidence on the law’s effectiveness and consider possibilities for reform.

“Gagging clauses” are clauses in employment contracts or settlement agreements which purport to prohibit workers from disclosing information about their current or former workplaces. A settlement agreement is a contract concluded at the end an employment relationship that seeks to prevent future disputes. Typically, it is accompanied by a payment to the worker. A gagging clause is unenforceable in so far as it purports to preclude a worker from making a protected disclosure.

Following a consultation in 2019 the Government has pledged to reform the law around settlement agreements to make sure workers felt confident in whistleblowing. These reforms are yet to be implemented.