Tuesday January 25th 2022
Midlothian Councillor and chair of the Midlothian Police, Fire and Rescue Scrutiny Board, Stephen Curran, has called for the end of the use of Non-Disclosure Agreements (NDAs) by Police Scotland. He says the lack of transparency and oversight where failings have been identified and NDAs have been used is concerning.
He recently submitted Freedom of Information (FOI) and was told that NDAs were used on 23 occasions between 2017 and 2021 with a cost to Police Scotland of over £700,000.
Councillor Curran said
“The range of reasons for the use of NDAs is unsettling. They include matters involving disability and sex discrimination, pregnancy discrimination, sexual harassment and victimisation, unfair dismissal and more.
“I sought the FOI after hearing of the disgraceful behaviour that former Police Scotland firearms officer, Rhona Malone was subjected to, and who subsequently won a landmark tribunal exposing victimisation within the force.
“If there is behaviour going on within Police Scotland that is in any way similar to what we heard in that case, then the public absolutely have a right to know and need to be reassured that something is being done about it. Behaviour like that cannot be tolerated. It is toxic, unacceptable and should never be covered up by the use of any gagging order.
“If Police Scotland robustly investigate such cases as they claim to, then they should have no problem with scrutiny and no need for NDAs. I do not believe NDAs have any place in a public body such as Police Scotland, unless there are truly exceptional circumstances and even then, scrutiny is needed.
“I have written to both the Chief Constable and the Cabinet Secretary for Justice, Keith Brown MSP, appealing that Police Scotland bring this practice to an end. Scrutiny and holding decision makers to account plays a fundamental role for the successful functioning of an organisation, and for the efficient delivery of the service. The benefits of public scrutiny should be embraced.”
In responding to the FOI Police Scotland said:
“Firstly, before we respond to your request, we would like to advise that Police Scotland uses non-disclosure agreements (NDA) in the settlement of many cases, including employment cases, as recommended by ACAS. There is public perception that NDAs are used to conceal wrongdoing.
“There is a distinction to be drawn between unethical and unlawful use of NDA’s and genuinely consensual agreements on confidentiality which benefit both parties. Police Scotland use such agreements in the latter sense and as part of settlement agreements to resolve claims.
“We also use ‘non-disclosure agreements’ separately in procurement contracts, to protect commercially sensitive information. In addition, employment tribunal hearings often attract media attention, which many employees wish to avoid.
“Police Scotland would not countenance the improper use of ‘non-disclosure agreements’ to prevent employees from revealing wrongdoing such as discriminatory behaviour, or cases involving bullying, or harassment. Whenever such cases are identified Police Scotland take action to investigate thoroughly and apply sanctions and / or learning outcomes as necessary to avoid any repetition of such behaviour.”
The FOI asked Police Scotland to provide the total number of NDAs, the different types of NDA
agreements, the total amount of financial compensation awarded and to make it clear if the agreements concern commercial companies rather than employees.
Police Scotland’s FOI response gave the following information
2017 – Financial Compensation £26,000
1 related to a matter involving age discrimination.
1 related to a matter involving disability discrimination.
1 related to a matter involving disability and sex discrimination.
2018 – Financial Compensation £458,760
1 related to a matter involving sexual orientation discrimination.
1 related to a breach involving data.
1 related to a matter involving sex discrimination.
1 related to a matter involving an employer’s liability reparation claim.
1 related to a matter involving disability.
1 related to a matter involving unfair dismissal.
2019 – Financial Compensation £65,500
1 related to a matter involving whistleblowing.
1 related to a matter involving sex discrimination.
1 related to a matter involving sexual harassment and victimisation.
1 related to a matter involving disability.
2020 – Financial Compensation £94,330
1 related to a matter involving unlawful deduction of wages.
2 related to matters involving disability discrimination.
1 related to a matter involving sex discrimination and victimisation.
1 related to a matter involving age, disability and sex discrimination.
1 related to a matter involving unfair dismissal and wrongful dismissal.
1 related to a matter involving pregnancy discrimination.
2021 – Financial Compensation £55,802
1 related to a matter involving part time work and less favourable treatment.
2 related to matters involving disability discrimination.
Police Scotland said that there were no companies involved in the matters involving NDA agreements.
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