Gagging Clauses in Compromise Agreements - Part 2
The Daily Mail have done another interesting article on gagging clauses in compromise agreements in relation to Council staff and Whitehall staff.
It would appear that Councils are using gagging clauses in compromise agreements to buy the silence of employees dismissed by Town Halls. The payout is designed to pay off an employee in return for promising not to challenge their departure in a court or tribunal, and not to talk about it to the media.
Channel 4 Despatches programme (not seen by the Writer) followed on from a story previously covered a couple of blog posts down whereby NHS workers were being gagged by compromise agreements.
Steve Doughty, Social Affairs Correspondent who wrote the article in the Daily Mail on 17 June 2013 states:
"The deals mean that malpractice can be kept out of the courts and the public eye and that whistleblowers can be neutralised".
"The problem is that large sums of taxpayers money are being used to ensure that the public is kept in the dark".
The article refers to a statement made by Eric Pickles MP, who is a long standing critic of local government use of compromise agreements, stating :
"This is an outrage. It is not a sensible use of public money to ensure that a council doesn't feel a degree of embarrassment. It is the same as trying to muffle whistleblowers". He added, "It is not a sensible use of public money because a compromise agreement might well be hiding from the public information that the public should get. It is part of the culture - let's put the problem to one side, let's try to ensure everything can be nice and easy, and we'll pay our way out".
The Council's argue that compromise agreements protect the council from future, potentially costly, employment disputes, thereby saving taxpayers money - its a double edged coin - "win win" the loser is the public domain where the media exist in relation to freedom of speech and expression - a necessary human right in a democracy.
It would be more fruitful to spend the money on raising the standards within the employer's service rather than covering over the problems that occur.
You have by now read my article "ADR the Achillies heel of democracy" and seen the paradox of my table on the Woolf Reforms. Compromise Agreements deliberately obstruct court actions. The universal nature of a court judgment means the law is upgraded to what our rights "ought" to be, as opposed to what our rights "is/are" via the political domain of statute. If court cases don't happen, then our rights stagnate and can only be upgraded by the political domain creating new legislation or codifying existing legislation. Statutes go out of date and it maybe years before they are upgraded, yet a court case can "change" the law where there is a challenge to the law as opposed to reiterating what the law is.
If court cases don't happen then law becomes imbalanced and political. So long as the laws created by the legislature are "good" law, then we will be ok. But Tony Blair's government put 3000 pages of law on the criminal statute book, which increased the prison population to 80,000 during his time in office. Maybe that makes some people feel safer in their beds at night, but too much statute law criminal or civil is over regulation and some of it may be little used if at all. Whilst codification is always a good thing because it brings the law up to date both statute and case precedent, there are still statutes on the books relevant today from the 17th,18th and 19th Centuries. For example the Bills of Exchange Act is based in the 18th Century and may still be relevant today in our 21st Century banking sector - the Government could easily do a codification exercise to bring the "is" law of statute and "ought" law of common law up-to-date as a banking reform measure rather than creating new banking law - which would be the more pertinent if those responsible for the banking crisis were being brought before the courts! Perhaps you can now see the problem that currently exists in society and our Western Democracy.
So, ADR/(compromise agreements)/(mediation) is the achillies heel of democracy. So perhaps the Daily Mail and Channel 4 Despatches needs to go deeper into this concept to see how far the impact of this concept's imbalance on society is - with emphasis on the court system - to show that our democracy is safe and just. They appear to have got the bit between the teeth concerning the "public" domain and have captured the evidence relating to the NHS, Councils, Whitehall and BBC. But they need to go further because the public domain of "litigation" is our democratic whistleblowing mechanism. The media need to focus more on the cases that are coming through the courts because they have universal impact and ensure our democracy is still in existence howsoever fragile.
(The writer undertook a mediation of her case against S J Berwin and others in November 2012 and whilst an offer was made it was not accepted. The writer did so because of the Woolf Reforms requiring parties to try to settle their dispute out of court. At a recent court hearing, the Writer refused to do an order to enter into mediation again. A trial is to be set down for later in the year/2014. The Writer would not recommend mediation to anyone, but would recommend that the courts improve their process to remove aspects of a case that is not enabling the case to speedy trial. The Writer's case has been in the courts since November 2004).
(Click Here)Article in the Daily Mail 17 June 2013 entitled "£262m bill to pay off gagged council staff"
It would appear that Councils are using gagging clauses in compromise agreements to buy the silence of employees dismissed by Town Halls. The payout is designed to pay off an employee in return for promising not to challenge their departure in a court or tribunal, and not to talk about it to the media.
Channel 4 Despatches programme (not seen by the Writer) followed on from a story previously covered a couple of blog posts down whereby NHS workers were being gagged by compromise agreements.
Steve Doughty, Social Affairs Correspondent who wrote the article in the Daily Mail on 17 June 2013 states:
"The deals mean that malpractice can be kept out of the courts and the public eye and that whistleblowers can be neutralised".
"The problem is that large sums of taxpayers money are being used to ensure that the public is kept in the dark".
The article refers to a statement made by Eric Pickles MP, who is a long standing critic of local government use of compromise agreements, stating :
"This is an outrage. It is not a sensible use of public money to ensure that a council doesn't feel a degree of embarrassment. It is the same as trying to muffle whistleblowers". He added, "It is not a sensible use of public money because a compromise agreement might well be hiding from the public information that the public should get. It is part of the culture - let's put the problem to one side, let's try to ensure everything can be nice and easy, and we'll pay our way out".
The Council's argue that compromise agreements protect the council from future, potentially costly, employment disputes, thereby saving taxpayers money - its a double edged coin - "win win" the loser is the public domain where the media exist in relation to freedom of speech and expression - a necessary human right in a democracy.
It would be more fruitful to spend the money on raising the standards within the employer's service rather than covering over the problems that occur.
You have by now read my article "ADR the Achillies heel of democracy" and seen the paradox of my table on the Woolf Reforms. Compromise Agreements deliberately obstruct court actions. The universal nature of a court judgment means the law is upgraded to what our rights "ought" to be, as opposed to what our rights "is/are" via the political domain of statute. If court cases don't happen, then our rights stagnate and can only be upgraded by the political domain creating new legislation or codifying existing legislation. Statutes go out of date and it maybe years before they are upgraded, yet a court case can "change" the law where there is a challenge to the law as opposed to reiterating what the law is.
If court cases don't happen then law becomes imbalanced and political. So long as the laws created by the legislature are "good" law, then we will be ok. But Tony Blair's government put 3000 pages of law on the criminal statute book, which increased the prison population to 80,000 during his time in office. Maybe that makes some people feel safer in their beds at night, but too much statute law criminal or civil is over regulation and some of it may be little used if at all. Whilst codification is always a good thing because it brings the law up to date both statute and case precedent, there are still statutes on the books relevant today from the 17th,18th and 19th Centuries. For example the Bills of Exchange Act is based in the 18th Century and may still be relevant today in our 21st Century banking sector - the Government could easily do a codification exercise to bring the "is" law of statute and "ought" law of common law up-to-date as a banking reform measure rather than creating new banking law - which would be the more pertinent if those responsible for the banking crisis were being brought before the courts! Perhaps you can now see the problem that currently exists in society and our Western Democracy.
So, ADR/(compromise agreements)/(mediation) is the achillies heel of democracy. So perhaps the Daily Mail and Channel 4 Despatches needs to go deeper into this concept to see how far the impact of this concept's imbalance on society is - with emphasis on the court system - to show that our democracy is safe and just. They appear to have got the bit between the teeth concerning the "public" domain and have captured the evidence relating to the NHS, Councils, Whitehall and BBC. But they need to go further because the public domain of "litigation" is our democratic whistleblowing mechanism. The media need to focus more on the cases that are coming through the courts because they have universal impact and ensure our democracy is still in existence howsoever fragile.
(The writer undertook a mediation of her case against S J Berwin and others in November 2012 and whilst an offer was made it was not accepted. The writer did so because of the Woolf Reforms requiring parties to try to settle their dispute out of court. At a recent court hearing, the Writer refused to do an order to enter into mediation again. A trial is to be set down for later in the year/2014. The Writer would not recommend mediation to anyone, but would recommend that the courts improve their process to remove aspects of a case that is not enabling the case to speedy trial. The Writer's case has been in the courts since November 2004).
(Click Here)Article in the Daily Mail 17 June 2013 entitled "£262m bill to pay off gagged council staff"
posted by Lesley McDade at 12:11 am
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