NDAs prevent learning in more ways than one

Jim Dickinson and Mark McCormack make the case for a ban on gagging orders across the full range of HE complaints

Mark McCormack is Chief Exec at the University of Bedfordshire Students' Union


Jim is an Associate Editor at Wonkhe

In the Department for Education’s press release on the use of Non-Disclosure Agreements back in January, the line was that victims of sexual harassment are being pressured into signing agreements which stop them from speaking out and protect the reputations of perpetrators.

Minister for higher and further education Michelle Donelan said that sexual harassment is “horrendous”, and that complainants should never be “bought or bullied into silence” to protect the reputation of their university. She argued that such agreements make it harder for other victims to come forward, and help hide perpetrators behind a cloak of anonymity.

Her view was that the use of NDAs to buy victims’ silence is “a far cry from their proper purpose, for example to protect trade secrets”. And so she was determined to see this “shabby practice” stamped out on our campuses, calling on university leaders to sign a new “moral contract” to end the use of NDAs against students and staff.

We agree with all that. But when we think about the cases that we have come across over the years involving students where we know an NDA has been deployed, it’s a position that also raises wider questions.

Why only universities?

The first issue that comes up is why the government is only or particularly concerned about the use of NDAs where a higher education provider is the employer.

What about catering firms on campus? The graduate jobs partners invited in to court applications from students? The bars and clubs where students obtain part-time jobs? The franchised and validated providers that carry the university’s logo? The temping agencies that the sector uses to get its own students to carry out essential admin?

Why has transport secretary Grant Shapps not announced a crackdown on the use of NDAs within train operating companies – particularly now that he’s all but nationalised most of them? And given how many students will end up working in it, how come Matt Hancock can get away with announcing a ban on NDAs in the NHS back in April 2019 – only for the Health Service Journal to report in November that trusts were still spending at least £1m a year on settlement agreements with staff containing gagging clauses.

As Hancock said at the time:

Settlement agreements that infringe on an individual’s right to speak out for the benefit of patients are completely inappropriate. We stand with whistleblowers. Making someone choose between the job they love and speaking the truth to keep patients safe is an injustice I am determined to end.”

At the very least DfE surely ought to signal that universities pledging an end to NDAs should cause them to be ruled out in suppliers they deal with too. And given that students have relationships with other organisations than just their university, and that harassment and sexual misconduct is rife across society too, surely a ban on NDAs ought to be part of a wider effort to rule them out across society?

Earlier this year, Conservative MP Maria Miller launched a Private Members’ Bill on NDAs. At the ten-minute rule debate, she said that:

…the use of non-disclosure agreements is driving the wrong culture in the British workplace—a culture where poor management can be covered up and where the silence of employees who have experienced significant wrongdoing can effectively be purchased, even motivating a small number of employees to vexatiously seek payouts from employers by making spurious allegations. We simply have to break this damaging cycle. My Bill would do just that: it would make it a basic principle of our legal system that no one, however powerful, could buy an employee’s silence if there were allegations of wrongdoing in the workplace.”

We agree. But why just in the workplace? Why not when it comes to customers, clients or students right across the public and private sector?

Resisting the resistance

Since Michelle Donelan launched her pledge drive, we’ve spoken to lots of people around the sector who’ve tried to raise the issue internally.

We take the view that universities who have been arguing “we don’t use NDAs” – when the confidentiality clauses they have been imposing on reporting parties in settlement agreements happen not to have labelled as such – should now rule out using such clauses.

We also think it’s important that universities stop arguing that it’s unwise to rule out NDAs because “reporting parties often want them”. Universities UK’s new guidance on staff-student sexual misconduct does makes clear that there might be cases where a confidentiality clause is requested by the reporting party because they want closure and privacy:

However, where this is the case, universities are encouraged to consider the ethics of such clauses and be satisfied that they are clear (ie not using ambiguity as a deterrent or to widen the clause) and have an appropriate justification for using them (ie be prepared to explain and defend the inclusion to a regulator or in public)”

Where they are not requested by the reporting party, they are clearly a problem.

UUK says that it is both unethical and unacceptable to use NDAs in cases of sexual misconduct and harassment. It says they can silence reporting parties from speaking out about their experience or a university’s handling of an incident, and protect responding parties, as the reporting party is prevented from warning others.

We also agree with all that. But all of that applies to NDAs in general, not just to cases with a sexual dimension.

NDAs are used by universities in general bullying or harassment cases and other types of discrimination raised by students. They’re also used to close complaints over all sorts of failures – in timetabling, student support, assessment, disability adjustments and so on.

Why? Isn’t doing so in many ways just as bad? In some cases that we’ve seen, the student has to sign to say they accept the university did nothing wrong and can’t even ever talk about it in exchange for their £250. Isn’t that also “unethical and unacceptable”?

The value of student voice

Almost every university we can think of talks about the value of student voice, partnership or co-creation.

And in the run up to TEF submissions, universities will be keen to demonstrate how they embed engagement with students, leading to continuous improvement to the experiences and outcomes of its students.

In the mix of surveys, committee memberships, focus groups, voice reports and meetings between SU officers and university senior teams, you’d have thought that learning from complaints would be a key aspect of that wider engagement strategy.

But instead of open discussion inside an institution and across the sector, in our experience complaints tend to represent a culture of silence and secrecy unless they happen to have reached the OIA.

It’s been more than two years since Felicity Mitchell argued on Wonkhe that confidentiality clauses are a barrier to learning lessons – yet students and staff are still asking why they’re necessary, so much so it takes a minister and Universities UK to point it out.

Imagine redacted text on the “You Said, We Did” poster because a confidentiality clause mandated that the issue not be talked about. Surely we do a disservice to complaints processes by detaching them from how providers approach the rest of student voice?

Yes but

We know that not all complaints settlements infer wrongdoing on the part of the university. Plenty of payouts or apologies are given because a university has undermined its own process, or has taken a view that something would be cheaper and faster to settle to allow it to get back to business.

But the downsides that apply to sexual misconduct cases – silencing, the inability to warn others, gather decent stats, learn lessons in public and the imposition of silence on complainants – are just too high.

Whether a university gets its income from fees, research or rent, it probably wasn’t meant to be spent on complaints that universities don’t think have foundation. Instead, we think the sector should be bold – to trust complaints processes and the OIA, and get savvy with how they are dealt with.

Universities across the country have adopted strategic plans that include values like compassion and honesty – values that are completely inconsistent with confidentiality clauses. And while we’re discussing strategy, we wonder how governors might square the circle of “confidentiality clauses for things we did wrong we don’t want made public” being compatible with the CUC Governance Code?

We agree with Michelle Donelan when she says that the use of NDAs to buy complainants’ silence is “a far cry from their proper purpose, for example to protect trade secrets”. And so in ending this “shabby practice” surely university leaders need to sign a new “moral contract” to end the use of NDAs not just in sexual misconduct cases – but in complaints cases altogether.

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