“The 1752 Group now calls for all UK universities to end the use of non-disclosure agreements in cases of sexual misconduct and calls all allies and supporters to lobby their own institutions to this effect.”
On 28th July 2018, University College London announced it would no longer be using “confidentiality clauses in settlement agreements” out of a desire to “create a culture of more transparency and openness around the issue of sexual misconduct and harassment”. This is an excellent and impactful initiative, and follows a legal challenge by a 1752 Group member which successfully settled with a confidentiality waiver (“Sex harassment victims force University College London to end gagging orders”, 28/07/2018, The Times).
The 1752 Group believe that non-disclosure agreements (NDAs) should never be used in cases of staff-to-student sexual misconduct for several reasons:
- NDAs prevent victims and survivors of sexual misconduct from speaking about their experiences and any disciplinary process outcome, disarming them from protecting themselves against retaliation.
- NDAs create the illusion that there are no consequences for perpetrating sexual misconduct, with no public acknowledgement of the existence of a disciplinary process or any outcome and sanctions. This enables a toxic culture to perpetuate.
- NDAs are used as an exploitative “price” for a complainant’s request for due recompense (whether in the form of a tuition fee reimbursement, study extension or compensation).
- NDAs protect the perpetrator despite solid findings of fact and enable the perpetrator to more easily move institutions and repeat their actions.
In addition, there is mounting disquiet nationally about the unethical use of non-disclosure agreements (NDAs) to silence victims of sexual misconduct and protect the reputation of institutions. Recent guidance from the Equality and Human Rights Commission Turning the Tables report states that:
“Confidentiality clauses used in settlement agreements after the allegation of harassment has been made may also prevent people from speaking about their experiences and reduce the likelihood of systemic problems being tackled.”
and that employers should:
“Only use confidentiality clauses at the employee’s request, save in exceptional circumstances.”
In addition, the House of Commons Women and Equalities Committee report, dated 18th July 2018, states:
“We are concerned that NDAs are being widely used to silence victims of sexual harassment in the workplace and to prevent cases being brought into the public eye for fear of bad publicity”
“Non-disclosure agreements (NDAs) are used unethically by some employers and also some members of the legal profession to silence victims of sexual harassment, and there is insufficient oversight and regulation of their use. It is unacceptable that victims are scared to speak about their experiences of sexual harassment in the workplace and that those who use NDAs unethically are not held to account.”
The 1752 Group now calls for all UK universities to end the use of NDAs in cases of sexual misconduct and calls all allies and supporters to lobby their own institutions to this effect.
To aid in this campaign we have drafted a letter to be adapted and sent to your vice-chancellor, along with an example form to collect signatures. Please see the guidance below.
Guidance to go alongside the letter for VCs on non-disclosure agreements
The letter should be adapted to fit with the particular institution in mind, and the specific policies in place. Do not be afraid to cite an institution’s own zero tolerance policies.
The letter should be targeted at high-level individuals, for example the Vice-Chancellor or President. In addition it may be useful to send the letter to the vice-provost of equality and diversity or an equality and diversity institution lead.
We do not recommend discussing or referring to any previous or ongoing cases of sexual misconduct within the letter, or naming any individuals. Naming risks making a university response difficult due to the confidentiality they owe to that employee, if still employed.
Individual letters are useful but it may be more efficient and effective to gather multiple signatures, for example from your union branch or department or group. It may be useful to ask any union branch you are a member of (e.g. student union, NUS, UCU, UNISON) to encourage signatures or sign themselves.
We suggest placing a complete letter on Google Docs shared with viewing rights only and sharing a Google Form for people to apply to add their name. See examples here:
In order to coordinate this action we have set up a Google Sheet where, if you tell us you are leading an action, we can list your name, email and institution where you are gathering signatures, and link to the petition form. Please send this information, if you feel comfortable doing so, to firstname.lastname@example.org. Please also check this list for an existing campaign before starting a new one within the same institution. The form can be found here and will be updated periodically:
Finally, we would very much like to hear the responses you receive. Please do contact us via email or twitter (@1752group) to let us know, we hope to be advertising success stories widely to encourage and step up the pressure on the sector.
The 1752 Group
If you would like to support our activism and research work please consider making a donation. All donations will be spent only on furthering the strategic aims of The 1752 Group and ending staff-to-student sexual misconduct in higher education.