Gagging clauses

This page represents a personal opinion and no responsibility can be accepted.

Updated March 2003

All employers insist on a gagging clause as it prevents details of the abuse from being made public and thus encouraging other employees to start legal action.

This is a big grey area and you might like to consider the following:

1) If the employer needs a gagging clause it is because they are scared. The more they offer, or the more they threaten, the more scared they are.

2) When an attempt is made to coerce you into signing, look the employer (or lawyer) in the eye and say (you have a right to say this, and it's incredibly empowering):

"The sum of money being offered is compensation for the detriment already incurred. A gagging clause is a breach of my human rights and is a new detriment and will thus have to be compensated separately and in addition. I'm happy to consider signing the agreement in return for you adding a zero to the sum being offered."

Standard negotiation practice is to never give anything away without getting something in return. Remember you are in the territory of legal etiquette, NOT social etiquette. Legal etiquette does not contain the words "generosity", "fairness", "reasonable", etc. After the other side have blustered and feigned indignation, ignore what they ask and say:

"My offer to sign your gagging clause at such a generously low figure does not reflect the scale of the wrongdoing you are attempting to hide and the degree of accountability your client will face through disclosure of his/her sins of commission and omission. I urge you to sign now before any increase in the detriment requires renegotiation."e;

3) If you choose or are forced to sign an agreement, sign ONLY the section that says you will not take further legal action for those areas of law which have specifically been judged, eg constructive dismissal. Employers often try to coerce employees into promising they won't sue for personal injury when they've only so far taken action for constructive dismissal.

4) If you are forced into signing, you might like to include the words "Signed under duress", or perhaps even use these words as your signature? Just a thought.

5) If you are threatened in any way for talking about the case subsequently, say calmly "OK, I'm happy for you to sue me, but in my defence I will have to disclose in open court every act of abuse to myself, my predecessors, and my successors, and every act of negligence by the employer, and all the wrongdoings that accompany this type of case." Your employer may need a change of underwear at this point. They will then accuse you of being "frivolous, vexatious and vindictive" to which you can reply, "I shall be reporting only matters of fact and of record. If you wish to label the behaviours of your client as frivolous, vexatious and vindictive then you will be helping to convict your client".

6) Even if you get a settlement and go back to work, is there a likelihood that you will still be victimized and scapegoated out of your job? Experience shows that once victimisation starts, it rarely stops of its own accord. In most cases, whatever you do, it gets worse. See item at  BBC News Online.

6) When dealing with the employer I recommend sticking firmly to the financial and legal aspects of the case. This is all they will react to. See action/legal.htm for the areas of law that apply and action/caselaw.htm for recent case law and out of court settlements.

Links

How to spot a gagging clause: advice from Freedom to Care: http://www.freedomtocare.org/page10.htm#gagging%20clause

Advice on the laws of slander (spoken), libel (written) and defamation (libel and slander): http://www.uow.edu.au/arts/sts/bmartin/dissent/documents/defamation.html

Libel FAQs: http://www.ldrc.com/LDRC_Info/libelfaqs.html

The McLibel trial: http://www.mcspotlight.org/case/index.html

If you're sued for defamation (libel or slander) here's how to make the action backfire: action/backfire.pdf

Pages at Bully OnLine

General advice on action to tackle bullying: action/index.htm

Informing your employer you are suffering stress because of bullying: action/inform.htm

Preparing for an employment tribunal: action/tribunal.htm

Dealing with a bad reference: action/referenc.htm

Phrases and strategies to tackle bullying: action/words.htm

Phrases and strategies for employers to tackle bullying: action/empwords.htm

Beware! Some lawyers, advocates and consultants are not what they seem: action/lawyer.htm

Tim Field
Webmaster, Bully OnLine at Bully Online
Moderator, BullyOnline action forum
Author, Bully in sight: how to predict, resist, challenge and combat workplace bullying