Figures sourced by the BBC through freedom-of-information requests show that, since 2017, UK universities have spent £87 million on staff payoffs made under non-disclosure agreements (NDAs) – widely known as ‘gagging orders’.
In a report on the human cost behind that expenditure, [1] BBC News highlights the experience of an academic named as ‘Amy’ (an alias), who was urged to sign an NDA with her former institution and leave after bringing a bullying complaint against an academic colleague. Amy explains that, since she took that course of action, the accused man has followed her to her new workplace – maintaining a pattern of behaviour that has now lasted for six, gruelling years.
Speaking to the BBC, Amy said: “He told me I’d never have a successful career. He has done nothing but undermine my confidence. It’s a complete abuse of power. I ended up hundreds of miles away at a new university, only for him to follow me and continue his harassment. Because of the NDA I can’t tell people what went on in the past. I can’t tell them why he’s doing this.”
Amy points out that the persistent bullying is “crippling” her career. However, she notes: “Universities would rather pay off people to leave than push out the person doing the bullying.”
The report also touches on the case of award-winning astrophysicist Emma Chapman, who received £70,000 in compensation following a sexual harassment tribunal against University College London.
While Chapman – who has continued to suffer from nightmares since her legal victory – did not sign an NDA, she is now campaigning with anti-harassment lobbyists The 1752 Group “to see this culture of silence banished and confidentiality waivers being given as standard, so that victims can protect their careers and universities are held to account”.
In a 17 April response to the BBC report, industry body Universities UK (UUK) said: “Universities use NDAs for many purposes, including the protection of commercially sensitive information related to university research. However, we also expect senior leaders to make it clear that the use of confidentiality clauses to prevent victims from speaking out will not be tolerated. All staff and students are entitled to a safe experience at university and all universities have a duty to ensure this outcome.”
The organisation added: “It’s important to note that a confidentiality clause will usually be one part of a wider settlement agreement that has been negotiated between two parties and, crucially, the signing of an agreement containing such a clause does not prevent staff or students from reporting criminal acts to the police or regulatory bodies, or from making a disclosure under The Public Interest Disclosure Act 1998.”
UUK noted that it will publish “comprehensive guidance” for universities on sexual misconduct later this year, which will cover the use of confidentiality clauses. That guidance, it said, “will be the result of detailed work by an advisory group brought together by UUK, involving stakeholders such as the 1752 group and the NUS. We are also engaged with the current government consultation on confidentiality clauses.”
How should a senior figure striving to be a good leader gauge whether an NDA is an appropriate solution?
The Institute of Leadership & Management head of research, policy and standards Kate Cooper says: “Having worked in this sector myself for a number of years, I have seen how NDAs are used as tools in the termination of roles, without the real reasons behind the breakdown of the employer-employee relationship being discussed or dealt with. This is a function of the power dynamic: rather than face the PR disgrace associated with lecherous professors, it would appear that institutions find it easier to cut deals with members of staff who have raised the alarm – or with students that have complained of inappropriate behaviour.”
She notes: “Thanks to movements such as #MeToo, many people outside universities have become aware of how NDAs have been used at institutions to mitigate the reputational effects of bullying and harassment. That awareness has shone a light on practices that are designed essentially to maintain power imbalances and silence individuals.
“However, bullying – whether in the form of sexual harassment, sexism or racism – cannot be the problem of the individual who has been victimised. Organisations themselves must take action against those threats, by examining how they are allowed to flourish within their walls. There will always be ways to undermine, disbelieve and challenge individuals. But what those people really need is support.”
Cooper adds: “NDAs have become overused solutions to a very specific problem. If they are deployed to silence people, then they are entirely misused. Leaders must communicate to their staff a set of explicit statements about what constitutes acceptable behaviour and what does not. That should happen at induction. But following on from that, employees must have the space and scope to talk about – and challenge – inappropriate behaviour wherever it lurks, rather than that conduct being kept in the shadows, subject to secrecy.
“The more these issues are discussed, and the more the unacceptability of certain behaviours is acknowledged, the less need there will be for NDAs – because those behaviours will simply not be tolerated. It will be the perpetrators of harassment and bullying who are facing investigation, rather than the victims. And that outlook should prevail at organisations of all types – not merely academic institutions.”
For further insights on the themes raised in this blog, check out the Institute’s resources on ethics and the healthy workplace
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