By Sophie Vanhegan - 31 May 2018
Earlier this month, Angus Sinclair, the former private secretary of John Bercow, Commons Speaker, gave interviews to the media accusing Bercow of bullying him, despite being paid £86,250 in 2010 as part of a deal that required him to sign a non-disclosure agreement (a so-called “NDA”).
To anyone who has been involved in an employee being paid a sum under a settlement agreement to settle allegations of bullying (or indeed any other potential wrongdoing in the workplace), this may raise the question – how was he able to do this without breaching his NDA and risking being sued for breaching it?
On the one hand, Mr Sinclair may be relying on the fact that it would be rather unappetising for the Commons authorities to now pursue him for breaching the NDA. However, on the other hand, he may well be able to rely on the fact that NDAs cannot validly prevent someone from blowing the whistle. One of the requirements for someone to qualify as a whistleblower is that they reasonably believe that their disclosure is being made in the public interest, and Mr Sinclair explicitly referenced this in his media interviews.
So where does this leave NDAs in an employment context now? The point that NDAs cannot validly gag whistleblowers is not a new one, but whilst a few years ago the fact of a pay-off and signing up to the broader terms of a settlement agreement would in effect silence someone alleging wrongful conduct, in the current climate (largely down to the #MeToo movement) we may well now see more individuals trying to rely on this carve-out to go public with allegations (particularly of a sexual harassment nature) if they believe that to do so is in the public interest, notwithstanding that they may have received hefty pay-outs in order to leave organisations quietly.