There is a lack of transparency, consistency and accountability in the use of compromise agreements in the public sector and little is being done to change this situation, an investigation by the National Audit Office has found.
Public sector workers are sometimes offered a financial payment in return for terminating their employment contract and agreeing to keep the facts surrounding the payment confidential. The contract is often terminated through the use of a compromise agreement and the associated payment is referred to as a special severance payment.
The spending watchdog highlights the lack of central or coordinated controls over the use of compromise agreements. The NAO was not able to gauge accurately the prevalence of such agreements or the associated severance payments. This was down to decentralized decision-making, limited recording and the inclusion of confidentiality clauses which mean that they are not openly discussed. No individual body has shown leadership to address these issues; the Treasury believes that there is no need for central collection of this data.
Today’s report recognizes that compromise agreements can be used for legitimate reasons: such as minimizing potentially time-consuming processes in managing poor performance, or where an employee has raised a grievance which the employer has not been able to resolve and wants to mitigate the chance of being taken to an employment tribunal.
It is also a normal part of a compromise agreement that some information be kept confidential which can benefit both parties. But the practice of including a clause to ensure the employer gives the employee a good reference could help poorly performing staff members gain employment elsewhere in the public sector.
None of the agreements reviewed by the NAO sought to restrict the individual’s rights under the Public Interest Disclosure Act and six, all in the health sector, made clear that nothing in the agreement prevented the individual’s whistleblowing. However, some people offered compromise agreements or who had accepted them told the NAO they had felt ‘gagged’. If an individual is unfairly dismissed and turns down a compromise agreement, the lack of a reference for that individual might block alternative employment in his or her profession.
Neither the Cabinet Office nor the Treasury provide formal guidance to departments or keep records of the use of compromise agreements across government or the content of confidentiality clauses. Treasury has issued guidance on the associated severance payments. Despite the NAO’s statutory access rights, it received only 60 per cent of the compromise agreements requested from departments.