A recent tweet from Michelle Donelan MP, the Minister of State for Universities, has resulted in further communication with HE institutions this month regarding the issue of sexual misconduct and harassment within the HE sector.
"Victims of sexual harassment must be protected and supported. I had written to all higher education providers making clear that the use of NDAs in sexual harassment cases is wholly inappropriate & hiding workplace harassment or withholding details of complaints is unacceptable."
The letter, although reasonably wide ranging, serves as a reminder of the attention the Government is giving to the use of Non-Disclosure Agreements (NDAs) in particular. This renewed focus is viewed partly as being in response to the continuing allegations that have been raised on the Everyone's Invited website, a website dedicated to highlighting instances of sexual abuse and misconduct across schools, colleges and HE institutions.
What is an NDA and how are NDAs used?
An NDA is a contract through which parties agree not to disclose information covered by the agreement, and were a controversial topic during the #Metoo movement, where NDAs were criticised as essentially being used to silence victims of sexual misconduct and harassment. An NDA can be a stand alone contract, or more commonly NDA clauses can be included in wider agreements, often covering settlements of threatened or actual litigation, for example settlement agreements terminating the employment of employees.
What does the government intend to do?
In response to this criticism, which included coverage about the use of NDAs by HE institutions, the government consulted about the misuse of confidentiality provisions in 2019, and announced it would legislate so that:
- disclosures could still be made to the police, health professionals and lawyers;
- the limitations of non-disclosure provisions were clearly identified in settlement agreements and employment contracts;
- independent legal advice received by individuals signing workplace non-disclosure agreements was enhanced; and finally
- the government also intends introduce enforcement measures for workplace non-disclosure agreements that do not comply with legal requirements.
The draft legislation is yet to be brought forward, and the minister highlighted in her letter that she was seeking to "explore options for going further in this area, to ensure that HE providers have robust mechanisms for reporting incidents of harassment".
What should HR institutions be doing?
HE institutions must continue to be vigilant in tackling sexual misconduct and harassment, updating their systems, policies and procedures that deal with these issues ideally before the beginning of the next academic year - just eight short weeks away. Confidentiality provisions will remain a feature of most settlement agreements for exiting employees but the parameters of these post employment restrictions should be carefully considered on a case by case basis (particularly where the restriction relates to any allegations of sexual misconduct).
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