Can Non Disclosure Agreements Prevent Whistleblowing?
Whistleblowing. It often makes international headlines for all the wrong reasons. It’s a PR disaster for the company and it nearly always negatively affects the whistleblower. In order to prevent whistleblowing occurring, businesses often implement non disclosure agreements. But is this legal, let alone moral?
What is a whistleblower?
If an employee reports certain types of wrongdoing within their company on behalf of the public interest, then they are often classed as a whistleblower. There are no time boundaries as to when an employee can whistleblow. It doesn’t matter if the incident happened 5 years ago, is happening currently or is due to happen very soon; employees can whistleblow at any time.
Undoubtedly, employers will be annoyed that an employee within their company has ‘blown this whistle’, however, it needs to be remembered that whistleblowers are protected by law and they cannot be treated unfairly or lose their job because of the incident. Can you provide some examples of whistleblowing?
Examples of whistleblowing include reporting:
a criminal offence that someone’s health and safety is in danger risk or actual damage to the environment a miscarriage of justice a company is breaking the law the belief that someone is covering up wrongdoing Can non disclosure agreements prevent whistleblowing?
Non disclosure agreements set out information that, once signed, neither party is allowed to divulge. The recent #metoo movement is a prime example of how non disclosure agreements are often introduced by large, powerful forces (whether this be a company or person) to cover up questionable and immoral behaviour. However the #metoo movement also demonstrated that even though non disclosure agreements are a legally binding ‘gagging order’, a person is still able to speak out about the secretive topics.
Earlier this year it was reported that employers are soon to be banned from using non disclosure agreements to cover up any reports of harassment, abuse or discrimination. The hope is that employees will be able to discuss freely with the police or medical professionals any negative experiences they have encountered. In ex-Prime Minister’s Teresa May’s own words, the upcoming changes will send a ‘clear message’ that more protection is needed for whistleblowers.
An employee has ‘blown the whistle’ and is claiming I have treated them unfairly. What’s next?
If an employee is claiming they were treated unfairly due to whistleblowing, they are well within their rights to take their case to an employment tribunal. But, if the employee reported their concern anonymously it will be harder for them to argue that they were in fact treated unfairly. This is because the employer supposedly would have zero knowledge on who actually blew the whistle on them.
Our advice? Non disclosure agreements should never be used to cover up unscrupulous behaviour within your organisation. They almost certainly will end in disaster. If your company is facing a whistleblowing claim or you would simply like more advice and support on how to avoid a whistleblowing situation, call our HR experts on 08450 50 40 60.