Silenced by unethical gag orders or protected by confidentiality agreements: Should the charity sector use NDAs?
5 November 2020
In recent years and even weeks, there has been increased publicity around the use of non-disclosure agreements (NDAs) in cases that involve workplace harassment or discrimination.
The rise of the #MeToo movement shed light on confidential settlement agreements and how they might prevent survivors from speaking out.
Due to the confidential nature of NDAs it is difficult to know how commonly and widespread they are used in the UK NGO sector. Yet recent whistle-blower allegations suggest charities have been using NDAs to prevent staff from speaking out on bullying and harassment in the workplace. Some articles even suggest that development organisations are more frequently using NDAs in employment contracts and termination settlements.
NDAs should neither intentionally nor unintentionally silence survivors at times when they require support the most. But how can we guarantee that NDAs are being used ethically when needed, whilst also encouraging the creation of an open work culture that allows employees to speak up?
NDAs do have legitimate uses. They can be used to prevent ex-employees and employees from sharing important and classified information between competitors. Survivors of sexual harassment, discrimination or abuse may also wish to use NDAs to keep their information confidential.
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However, this needs to be weighed up against the power balances that we know exist in the workplace which may mean that employees feel pressured into reaching a settlement that prevents them from speaking out.
Acas have published helpful guidance on NDAs to make it clear that they cannot be used to stop someone from:
- reporting discrimination or sexual harassment at work or to the police
- disclosing a future act of discrimination or harassment
They also make it clear that NDAs should not be used:
- before seeing if another solution can be used instead
- to stop someone reporting discrimination, harassment or sexual harassment
- to cover up inappropriate behaviour or misconduct
- to avoid addressing disputes or problems in the workplace
The language we use in NDAs should be simple to understand, leave no room for ambiguity and provide a straightforward explanation of why an NDA is being proposed, and employees should be given enough time to ask questions regarding the NDA and seek legal advice if necessary. It is important that employees know their right to seek independent legal advice and where support exists. Workplaces with recognised trade unions provide useful resources, like free legal advice, and expertise for staff dealing with NDAs and confidentiality agreements.
It might also prove useful for charities to report how often they use NDAs in their annual reports, including their reasons for issuing the agreements and at what cost. This increased transparency could help prevent organisations using NDAs to cover up allegations of unlawful practice.
One third sector employee who signed an NDA and received a settlement after raising issues of discrimination has spoken out:
“I was under enormous stress and this was affecting my emotional health at work and at home” the organisation “might claim that they have a robust internal complaints and whistleblowing policy which protects the employee, but I know from first-hand experience that this is not the case. If you are brave enough to make a formal complaint and put your head above the parapet, you have sealed your fate and most likely the end of your career at the charity.”
Organisations could potentially look to only use NDAs when requested by the employee themself. Although this does raise questions as to whether an employee would know when it is suitable, what the implications are and how to request an NDA.
Due to the complicated nature of NDAs, and the problematic risks that arise if they are used irresponsibly, it is important that we encourage an open and inclusive workplace culture where employees feel comfortable raising issues and are confident that they will be taken seriously. These mechanisms can provide an alternative route to NDAs and they discourage practices where settlements are used to silence employees. Workers also need to be informed of their legal rights and the support that unions can provide. Increased support towards employees when an NDA is requested, simple and concise language in the agreement and further transparency over the number of NDAs issued by charities will also help to minimise any unethical use of NDAs across UK NGOs.