How can the public sector protect commercially sensitive details post-Crossrail?

With Crossrail recently announcing that it will stop requiring departing staff to sign non-disclosure agreements (NDAs), more organisations involved in infrastructure projects are set to be put under the microscope for their use but how can the public sector still safeguard themselves from unneccessary information being leaked? Weightmans law expert Lee Rogers explains.

NDAs are often used by organisations to prevent commercially sensitive information from being shared inappropriately by employees, such as pricing and intellectual property. 

The Crossrail controversy began when it was revealed that its parent organisation, Transport for London (TfL), signed more than 800 NDAs with departing staff between 2016 and 2017. In response to public outcry, TfL stopped the practice, and when Crossrail announced the Elizabeth Line would be delayed further in August of last year, the same criticisms were levelled in its direction. 

The problem with NDAs in the context of public sector infrastructure projects is the potential for them to be used to prevent employees from raising genuine concerns about matters in the ‘public interest’, such as malpractice or overspending.

When the Crossrail delay was announced, TfL, the chair of the London Assembly's transport committee Caroline Pidgeon and London mayor Sadiq Khan, questioned whether NDAs were being used to stop ex-Crossrail employees from revealing the causes of the delay. 

The challenge is, now that Crossrail has made a public commitment to stop using NDAs, their use by other organisations is likely to come under scrutiny. In the public sector, it is not a stretch to anticipate that a requirement not to use NDAs could become a feature of future tenders. For organisations that use NDAs, this culture change should prompt a re-evaluation of how best to protect commercially sensitive information in a procurement landscape where transparency is paramount. 

It is therefore important that organisations involved in public sector infrastructure projects ensure their contracts of employment include provisions to protect commercially sensitive information, both during the term of the employment relationship and following its termination.

As a part of its commitment to stop using NDAs, Crossrail made clear it would still use appropriate confidentiality provisions in Settlement Agreements with departing employees. So, if an organisation is concerned a departing employee could disclose commercially sensitive information, it should consider using this more nuanced approach to outline exactly what information the employee can’t disclose. 

However, its important such restrictions are no wider than is necessary. They cannot prevent former employees from reporting concerns in the public interest, such as malpractice to a regulator. Equally, the increased focus on transparency should highlight the need for an appropriately drafted Whistleblowing Policy to organisations bidding for public sector infrastructure work. 

Such policies should promote a culture of openness and enable staff to raise genuine concerns of suspected wrongdoing in the knowledge their concerns will be taken seriously and investigated, without fear of reprisal. 

Whistleblowing policies and effectively drafted employment contracts and Settlement Agreements will help organisations involved in delivering public sector infrastructure thrive in an environment where the spotlight of public opinion is now felt more greatly than ever before.

Lee Rogers is an associate in at Weightmans LLP’s employment team, with experience advising construction firms on employee contracts and settlement agreements.