This article is more than 4 years old

How to manage student complaints without NDAs

A non-disclosure agreement can be a barrier that prevents a provider learning from complaints. Independent Adjudicator Felicity Mitchell recommends a more positive approach.
This article is more than 4 years old

Felicity Mitchell is the Independent Adjudicator at OIA.

It’s not always easy to see a complaint as a gift, especially if you are the one making it. But drawing out the learning from a complaint can turn what might feel like something very negative into something much more positive.

Students often tell us that they don’t want anyone else to have to go through what they have gone through. If their higher education provider can show that lessons have genuinely been learned which will benefit the wider student body, that can be profoundly reassuring for the student. The use of non-disclosure agreements (NDAs) or confidentiality clauses can be a barrier that prevents both the lesson learning and the reassurance. NDAs are rarely appropriate in the context of student complaints.

Confidence in complaints processes

The potential for the use of an NDA to have a negative impact on the individual student involved has been clearly illustrated in recent media reports, and this in itself is reason to be hesitant about their use. But the effects can also be wider and more insidious. It is important that student complaints are handled fairly and as far as possible transparently, and have fair outcomes, so that students can feel confident in the process and comfortable to raise their concerns. If that is lost, it risks enabling a culture in which unfairness and unacceptable behaviour or practices are allowed to go unchallenged.

So what should higher education providers do?

Our Good Practice Framework for handling complaints and academic appeals sets out the principles of a good complaints process. These include expecting all parties to act reasonably and fairly towards each other, ensuring an appropriate level of confidentiality without disadvantage, and ensuring that students are not disadvantaged as a result of bringing a complaint.

We encourage providers to try to resolve complaints at the earliest opportunity. But a settlement agreement should be freely and fairly entered into by both parties, and a student should never be pressured into accepting a settlement or discouraged from pursuing their complaint further if they feel their concerns have not been properly addressed. It is especially important that they are not pressured into signing a legally binding agreement.

We have issued guidance for providers specifically on making settlement offers to students while we are reviewing a complaint and on offers resulting from Recommendations we have made when we have decided that a complaint is Justified or Partly Justified. The principles underpinning this guidance are also applicable to settlement agreements that a provider may wish to make with a student during internal complaints processes.

We can see that occasionally there may be situations in which a non-disclosure agreement may be appropriate, but those situations should be few and far between and the provider should consider very carefully whether it is really the best approach.

What about personal information?

Often complaints will involve personal information about other students or staff members. Providers need to be careful to safeguard all personal information, especially sensitive information. But this should not normally extend to expecting a student to sign a legally binding settlement agreement or a confidentiality clause. Carefully redacting documents and/or using pseudonyms can help reduce the risk that personal information is compromised.

Complaints involving sexual misconduct

It is disappointing but perhaps not surprising that some of the use of NDAs has been in the context of complaints about sexual misconduct. These complaints can be particularly challenging to handle well and providers have a duty of care to all students involved, and to any staff members. We have published a briefing note on complaints involving sexual misconduct and harassment which we hope gives helpful guidance.

It can be very difficult for a student who has experienced sexual misconduct or harassing behaviour to make a complaint, and this is particularly the case if the complaint is about a staff member, where there is an obvious imbalance of power. This makes it all the more important that providers make it as easy as possible for students to raise such issues, and support them when they do. The heavy-handed use of NDAs is not consistent with an open and supportive culture that encourages students to come forward.

A more positive way forward

NDAs or similar agreements should not be used as a tool to silence students or cover up serious issues. We encourage all providers to take a positive approach to student complaints, putting the student at the heart of their complaints process so that students can raise their concerns with confidence, knowing that they will be supported and listened to and that issues will be addressed.

Hear more from Felicity Mitchell at The Secret Life of Students in March. Booking open now

One response to “How to manage student complaints without NDAs

  1. I did a FOI and asked a post-92 institution to provide me with OIA style summaries of their Justified/Partly Justified decisions – anonymised of course to protect confidentiality.

    They refused.

    Felicity’s focus on learning from complaints is heartening but there needs to be a cultural shift first – away from a culture that views OIA decisions as dirty linen that should never see the light of day.

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