Universities need to think twice before using an NDA

Universities need to think twice before using an NDA

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You could be forgiven for thinking that as soon as an allegation of sexual harassment or abuse is raised within an organisation that the first call placed will be to a lawyer to get a non-disclosure agreement (NDA) put in place.

Investigations into #metoo allegations and court cases involving organisations from legal firms to universities suggest that rather than being a last resort, NDA’s are the risk management tool of choice. Gagging and cover-up, being preferable to proper investigation and remediation.

NDA’s used to be just for protecting commercial interests

We are used to seeing corporations and legal firms using NDA’s, but when universities use them to silence those who have been sexually abused or harassed, serious questions need to be asked. 

BBC News questioned 136 universities on whether they were using NDA’s. The responses revealed that about 300 students had signed NDA’s since 2016, covering everything from sexual harassment to bullying and poor teaching. Around a third of universities had used them, totalling payouts of £1.3million, with individual payments ranging from £250 to £40,000. 

In April 2019  Times Higher Education reported that a freedom of information request had identified that UK universities had issued over eleven thousand NDA’s in the past five years and the number is rising year on year. This figure primarily represented NDA’s written with staff as part of negotiated settlements. Of concern is that these settlements could be preventing staff members from speaking up and declaring incidents of harassment and abuse to themselves or others. They could also be allowing workplace predators to continue operating unchallenged. 

Gagging orders seem to have replaced compassion and a desire to do the right thing.

Whether used on staff or pupils, we have to ask whether NDA’s have replaced compassion, honesty, trust and even outrage within an organisation? We also have to question if it is more important to maintain the status quo, preventing the boat from rocking, than doing the right thing.

It would appear that the desire to mitigate perceived risk to an organisation and individuals has been misplaced and overtaken doing the right thing. It would also appear that a passion for making a problem go away in the short term has replaced implementing real long term solutions that would instead create safe, trustworthy places for both study and work.

Emma Chapman of the 1752 Group that campaigns against sexual misconduct in higer education, told Times Higher Education:

“this level of NDA use shows how universities have long prioritised reputation management above the safety and well-being of their students and staff”.  

This past weeks Sexual assault claims ‘gagged’ by UK universities  BBC News article by Rianna Croxford for BBC News raises serious questions of Vice-Chancellors across the land. Pupils and staff who have been or have potentially been abused need support. They are not legal entities on which restrictive contracts can be slapped to put a lid on bad news. We need to continue to see all staff and pupils for what they are. They are humans, and their minds matter.

If you are still wondering whether this is really an issue we should be discussing, then consider this:

60% of students suffer sexual harassment during their studies

Previously, Chris Skidmore, the now ex-universities minister had said that the Department for Education would investigate after it emerged that a third of universities had used non-disclosure agreements (NDAs) to silence students over various matters. With the past weeks split of the universities and science ministerial portfolio, one can only wait to see the approach of the new universities minister Michelle Donelan. With the media continuing to focus on abuse and harassment and the use of NDA’s it is unlikely that the pressure is going to reduce for Vice Chancellors. 

Effective risk management

If you are a university, or for that matter any other organisation, it will always be essential to manage risk and mitigate it as far as is practically possible. However, suppression of genuine concerns, harrassment, bullying or abuse is a dangerous path to go down. Sweeping complaints under the carpet, without proper, appropriate investigation can lead to increased levels of risk as the root cause of issues goes unchallenged. 

Leaders in further education do have an obligation to their owners, shareholders, trustees, parents, pupils and staff to protect the organisation’s very existence and its ability to function. But there are right and wrong ways to go about that. It must not be at the cost of those over which the establishment has a duty of care.

The day an organisation even decides to start considering NDA’s should be the day to decide to change. There are usually far better ways to mitigate risk tactically, and certainly better ways to go about getting long term outcomes. Prevention, management, intervention, support, care, compassion etc should all be considered.   

Transparency and risk management working together

Sometimes organisations need to put their hands up and admit that negative things can and do happen. Putting heads in the sand, and suppressing bad news is harmful to individuals and universities alike. Sometimes, organisations just need to take it on the chin. Transparency is an important step towards building trust and building positively for the future.  

Transparency helps build trust, especially when those within an organisation see that complaints are dealt with fairly, appropriately and effectively. 

Its time to shift thinking, but it won’t be easy.

The shift needed to think like this is not easy. In fact, its likely scary for anyone in a position of responsibility. However, it needs to be navigated and a new direction found.

Our challenge to universities is to embrace change in this area and to resist the instant urge to contain a situation, instead of focusing on doing the right thing. When something goes wrong, the university has responsibilities to a number of parties, and each of these will need to be dealt with appropriately. In the case of an allegation of sexual abuse, harassment or bullying the victim, the pupils or staff involved, even the accused need to be treated respectfully within an established well thought out process that includes appropriate levels of compassion and honesty. 

What can universities do differently?

50% of all students believe there is an understanding of consent among university students.

Sexual abuse and harassment will inevitably happen from time to time; it is unlikely that we can entirely eliminate them in society. But through adequate preventative education, pupils and staff can learn about boundaries, respect, and relationships. Preventative education is proven to be able to significantly reduce the volume and impact of the abuse and harassment that is happening.

Properly investing in prevention would be a significant step forward from where we are today.

No longer can a university culture that allows a presumption of sexual consent prevail. No longer can universities leave students to educate themselves on what’s right or wrong when it comes to boundaries, sex and relationships. Clearly, that doesn’t work. Pupils and staff need to be educated on that. Universities need to work on showing that attitudes need to change and start systematically working on changing behaviour, with each new cohort, as well as those already well into their courses.

Creating trustworthy reporting and follow-up mechanisms

Only 2% of victims feel able to report the incident to their university

Mid 2019 Channel 4 asked as part of Cathy Newman’s research in to the excellent  82% increase in reports of sexual violence in universities responding universities highlighted that 626 reports of rape or sexual assault had been made in 2018. However, when in other studies only 2% of victims have responded that they felt unable to report what had happened, it would appear that Vice-Chancellors and the Department of Education may not be fully aware of the horrific situation on the ground.

Clearly, universities will never see the clear picture unless they work hard on implementing effective, balanced, trustworthy reporting mechanisms. 

Students need to know that when they report what has happened to them that they won’t suddenly feel like they are the accused and blamed. They will need to feel that the processes in place are already worthy of trust and respect. For students that can only come with transparency and collective lived experience of processes working, rather than students being told by those whom they’ve reported an incident to that they had tempted fate by the way that they were dressed, or because of what they had said or drunk.

Adequate reporting mechanisms need to be made available to students. For those that do report that they have been harassed and abused, they need to be supported and protected from further indignity. 

It is time to see universities openly talking about the number of reports of sexual abuse and harassment that they’ve had on or off campus. It is time to see them proving that they are organisations in which their pupils and staff can have trust because they do the right thing for those for whom they have a duty of care. Having that conversation will mean more bad news as the truth comes out, but it is the only way that a responsible education system can move forward and develop trust. NDA’s just suppress the issue and with student seeing increased numbers of outstanding brave victims prepared to wave anonymity and take universities to court this problem will not be going away.

So if you are a Minister, Vice-Chancellor or member of university management ask yourself whether its better to get ahead of this issue, rather than bury your heads in the sand and ignore or rely on an NDA. 

This article was written and published by Brian Tancock.

Brian Tancock is a director and founder of Flexmind. Flexmind and its specialist partners help universities and other organisation to do the right thing for themselves and their pupils, through preventative education, and the implementation of frameworks that encourage trust and transparency. Flexmind uniquely bring an in-depth understanding of business, education, risk-management and mental health together for the benefit of people and organisations alike. 

If you would like to discuss any of the questions or challenges raised in this article, or to seek help turning your organisation around, please get in touch with Brian or one of his colleagues. Our details can be found via the About Page, or you can contact us via the Contact Us Page.

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