Recent parliamentary scrutiny has fallen on the use of non-disclosure agreements (NDAs) as a way that some employers supposedly hush up inappropriate conduct unfairly.
As ever, the reality is more nuanced, with many universities and other employers choosing to retain some element of confidentiality in settlement agreements (including ACAS conciliated COT3 settlements) when settling claims of sexual harassment from staff.
This can often be more to do with a desire to keep confidential the amount paid in settlement (so as to avoid setting precedents) particularly when liability is not admitted, and maintaining privacy for those involved, as opposed to wanting to shelter wrongdoers or cover up poor practices.
Nevertheless, a number of employers have chosen to significantly reduce the extent of confidentiality provisions in agreements or simply remove them altogether.
The pledge in higher education has attracted significant media interest. From a handful of institutions pledging to cease reliance on NDAs, current figures suggest that over 70 have now signed up. So what’s the context for this desire for transparency?
In a 2021 report, the University and College Union described sexual harassment in higher education as “endemic”. It alleged that “cultural problems” led to a reluctance to discipline perpetrators. In particular, anxiety about reputational damage and the potential adverse impact on research funding might inhibit the ability or enthusiasm of some employers to tackle sexual harassment properly. Fairly or unfairly, there is a sense that higher education has a problem with sexual harassment.
The key component of sexual harassment is that the conduct complained of must be unwanted conduct of a sexual nature and have the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Of course, confidentiality provisions have been around for decades in the employment context. In the aftermath of the #metoo campaign, they have begun to be seen more and more as a blunt and inappropriate tool in the context of settlement agreements
Whilst an employment tribunal is entitled to construe a complainant’s interpretation of particular conduct as unreasonable, the definition is sufficiently broad and wide-ranging as to bring into scope a great variety of potentially harassing conduct: from inappropriate emails, touching, comments, and “banter”, right up to the most serious activities which might also amount to criminal conduct.
Moreover, harassment can occur when the offending conduct was not initially directed at or even known by the complainant.
In Whitehead v Brighton Marine Palace and Pier Co Ltd ET/3102595/04 a remark to a third party about an individual was reported to that person. This was enough to establish a case of sexual orientation harassment. It is also established that a victim of unlawful sexual harassment is not obliged to communicate that such conduct is unwanted. Nor does putting up with offensive behaviour for a long duration avoid liability if that person eventually decides to pursue a claim.
Although a university employer may seek to avoid liability in a sexual harassment case brought by an employee by arguing that it took all reasonable steps to avoid the harassment, such a defence is notoriously difficult to run. It may simply drive a wedge between the alleged perpetrator and the institution, further complicating the defence of the claim.
It is perhaps because of these complexities and the inherently distasteful nature of sexual harassment complaints and litigation that employers may be minded to reach a settlement – and moreover, consider attaching confidentiality to the settlement.
Of course, confidentiality provisions have been around for decades in the employment context. In the aftermath of the #metoo campaign, they have begun to be seen more and more as a blunt and inappropriate tool in the context of settlement agreements. In truth, the use of NDAs has already been scaled back partly due to legal developments, such as the need to carve out public interest disclosures from confidentiality clauses, and in some sectors reliant on public funds, to reflect principles of transparency and value for money – unless there were very good reasons to include confidentiality.
In higher education, in particular, all of the above, together with principles around free speech and challenging conventions, arguably made the use of NDAs even less attractive.
Adding its voice to the debate, the Solicitors Regulation Authority warned solicitors about the overzealous use of confidentiality clauses in settlement agreements but fell short of an outright ban.
Thus, for the time being, it is likely that within the employment field at least, confidentiality provisions (or NDAs if you prefer) will remain in use albeit considerably watered down and nuanced in comparison to the kind of all-embracing confidentiality provisions of old – unless or until your institution decides to sign the pledge and do away with NDAs altogether.
Ashley Norman is joint head of the higher education team and an employment and immigration law specialist at the national law firm Bevan Brittan LLP.