What is a gagging order?
A gagging order is another phrase for a confidentiality clause, which stops the employee from discussing the terms of a settlement and the circumstances surrounding the dispute with the media and other third parties. These clauses are often found in settlement agreements. The employer may agree to pay a sum of money on the basis that the employee does not bring any claims, such as for unfair dismissal and discrimination. It is a requirement to seek independent legal advice on the terms of the agreement and the ability to pursue employment claims.
A confidentiality clause, forming part of the agreement, will mean that the employee is effectively silenced from speaking out. This type of clause is legal, and frequently used.
Any contractual term or other agreement in a contract of employment or settlement agreement will be void though where it seeks to prevent a worker from making a disclosure in the public interest (whistleblowing).
Only certain types of disclosure come within the whistleblowing legislation and there are limited bodies to whom disclosures can be made.
Should more general confidential clauses be banned?
A ban would allow people to speak out freely about their complaints, and this could put more pressure on employers to act within the law.
However, often employers agree to make payments even when they’ve done nothing wrong because of the costs and time in defending claims.
If a ban on gagging orders were imposed, there would of course be far less incentive for organisations to reach deals. This would have a knock on effect on claimants who may prefer to settle rather than pursue costly litigation.