Non Disclosure Agreements in Universities

Caragh Bailey
28/01/2022
8
3 min read
Ethics of Non Disclosure Agreements in Universities, by Employment Law Friend

NDA's in universities – Government launches campaign

On 18 January 2022, the government launched a new campaign to stop the use of legally binding non-disclosure agreements (NDA's) in the university sector. Launched with several vice-chancellors, and campaign groups, the aim is to persuade all vice-chancellors to sign a pledge to cease using non-disclosure agreements, with those that do being listed on the #CantBuyMySilence website

Non-disclosure agreements are when an employee (or student) signs an agreement not to disclose the details of their complaints as part of a broader contract to end their dispute, which almost always involves them receiving financial compensation. Generally speaking there is a clause stating that if the employee speaks publicly about the agreement, or the circumstances which gave rise to it, then they will lose any financial compensation they received.

The use of these in employment settlements agreements is long standing, but in the advent of the “Me Too” movement has become more controversial, with a feeling that in practice they turn settlement agreements into “shush money”, making it less likely other complainants will come forward, and enable abuse to be swept under the carpet to preserve an institutions reputation, making it more likely that the abusive behaviour will continue. They are also criticised for silencing victims in the short and long term, and enabling abusers to receive anonymity.

Whilst the focus is generally on sexual harassment, in principle non-disclosure agreements can and do get used for cases involving a wide variety of inappropriate behaviour, from race discrimination to bullying. This campaign aims to stop their use in all cases.

Crucially however this new initiative will not have any real teeth. Michelle Donelan, the Higher Education Minister, speaking on BBC’s Women’s Hour on 18 January 2022 stated that it was a “moral contract” for universities to sign this pledge.

But, the use of legally binding non-disclosure agreements is not being made unlawful and Ms Donelan’s contention that students would vote with their feet and not attend universities that did not agree to this pledge seems far fetched (and does nothing to address the issue of employees).

Although non-disclosure agreements are often portrayed as preventing victims from speaking about abuse, on the other side in many cases victims get greater compensation than they otherwise would if they did not agree to sign these.

In some cases without this sort of agreement, a university would not be willing to pay anything, forcing a victim to go through the expense and pressure of tribunal, or to do and therefore receive nothing. It is not always clear cut that it enables bullying to take place and for bullies to receive anonymity – there are always at least two sides to what occurred, and settlements can be received following allegations which for various reasons are never properly investigated.

It remains to be seen whether this initiative has any success in practice. Ms Donelan proposes to telephone all vice-chancellors over the next year and pressurise them into doing what she describes as the right thing, arguing universities should be leading the way in protecting staff and students. There will however be no real implications for any university that continues to use legally binding non-disclosure agreements, even if only on an occasional basis.

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