The real threat to free speech on campus is the NDA

Non-disclosure agreements that silence staff or students should be banned, says Mark Geoghegan

June 7, 2021
A man holds paper in front of his mouth, symbolising non-disclosure agreements
Source: iStock

For all the UK government’s noise about the need for new legislation to protect freedom of speech on campus, it has actually been legally protected since the 1986 Education Act.

Attempts to block speakers are often highly publicised and they show what is at stake. But what about those like Kirsty who are silenced without fanfare or outrage, and without the rest of us being any the wiser?

Kirsty (not her real name) led a small professional services team and reported that a process being followed was not consistent with her university’s legal obligations. But the university did not welcome her intervention and dragged her through a process designed to destabilise her.

Finally, she accepted defeat, signed a non-disclosure agreement, took the cash, left the institution and tried to pick up the pieces of her life. But not only did the NDA prevent her from discussing what happened, its very existence was confidential. Trying to find employment of equal worth when you are unemployed and unable to explain why is not an enviable proposition.

But it was worse than that for Kirsty because the mental toll that the previous year had taken was such that she didn’t even want a similar job. Her university career was over. She is now earning a fraction of what she did before, while those responsible remain comfortable in their jobs. And the irony is that since it is not possible to use an NDA to silence an ongoing breach of law, the university had to make right the failures in process that Kirsty had been forced out for flagging. She lost her job for nothing.

I don’t know Kirsty. Her story was told to me by a friend, who witnessed it unfold. But she is not the only one to be gagged by an NDA. Recently, UK universities have been authorising more than 2000 NDAs annually among their students and staff. Three universities – two with as few as 2,500 staff – managed more than 400 NDAs over a five-year period.

Speak Out Revolution – a recently founded non-profit organisation dedicated to combating the culture of silence on harassment and bullying in UK workplaces – has early data showing that education is one of the worst culprits for using NDAs. And the All Party Parliamentary Group on Whistleblowing has reported that education has the second highest incidence of whistle-blowing.

Some NDAs are associated with restructuring, and some are trivial. But many will have been used to cover up wrongdoing. Much has been made of their use to silence the victims of sexual harassment. Following the legal challenge by Emma Chapman regarding her experiences as a doctoral student, UCL has made a public statement affirming that NDAs will no longer be used in such cases. Imperial College London, where Chapman is now a research fellow, has since followed suit. These are positive steps, but other victims, such as Kirsty, will still be bound to silence.

The Office for Students will intervene regarding serious misconduct that breaches the regulatory framework – but only after it has been internally reported and provided it is not the subject of an employment dispute. This is far too high a bar – especially given that universities are likely to be particularly hostile towards whistle-blowers when the misconduct is by senior staff.

NDAs are easy to implement, so facilitate a race to the bottom in terms of managerial behaviour. And even when the behaviour is illegal – so whistleblowing law overrides any gagging agreements – NDAs can be used to intimidate staff into silence.

Last year, the conciliation service Acas set out guidance for the use of NDAs, yet even those limited recommendations were met with deafening silence from the sector. If the government really wants to act to protect free speech in universities, it should use the regulatory framework to ban NDAs that silence staff and students – restricting their use to commercial contracts and the monetary amount of severance agreements.

After all, universities are almost certainly not routinely engaging in activities that necessitate NDAs to allow the guilty to escape blame. So what effect would outlawing gagging orders have on how universities are run? It would mean that managers would have to be less cavalier in how they acted towards their staff. They would become accountable – and isn’t that a good thing?

Media interest in the behaviour of Harvey Weinstein and Sir Philip Green has shown how NDAs are misused. Coming forward took substantial courage on the part of those who violated the terms of their NDAs to tell their stories. Victims often simply want to move on, and why shouldn’t they?

But perhaps case studies like these can highlight the real and long-lasting effect of NDAs on the victims – while the misbehaviour they suffered is perpetuated by the cloak of secrecy. So if you have a story to tell, either of your own experiences or those of a consenting friend or colleague, then please submit it, anonymised, to Speak Out Revolution.

It only took a few highly publicised cases of student no-platforming to prompt the government to legislate in support of campus speakers. We can only hope that a greater weight of evidence will propel it to properly protect whistle-blowers and call out managerial wrongdoing.

Mark Geoghegan is Roland Cookson professor of engineering materials at Newcastle University.

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