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Summary

Universities Minister, Michelle Donelan, has raised concerns about the use, or rather misuse, of Non-disclosure agreements (“NDAs”) within the higher education sector. In the wake of testimonies published on Everyone’s Invited, there is evidence that NDAs have been used to prevent disclosures relating to sexual assault and harassment cases within universities. The Office for Students has already instructed universities to review how they manage complaints of sexual assault, misconduct and harassment. Universities Minister, Michelle Donelan, has raised concerns about the use, or rather misuse, of Non-disclosure agreements (“NDAs”) within the higher education sector. In the wake of testimonies published on Everyone’s Invited, there is evidence that NDAs have been used to prevent disclosures relating to sexual assault and harassment cases within universities. The Office for Students has already instructed universities to review how they manage complaints of sexual assault, misconduct and harassment.

The Non-Disclosure Agreements Bill (“the Bill”) seeks to restrict the use of NDAs as a way to silence accusations of illegal activity or wrongdoing. The Bill has recently had its first reading in Parliament.

Traditionally NDAs were used to protect commercially sensitive information. In an employment context, confidentiality clauses are often used for the following purposes:

  • To prevent employees disclosing an employer’s confidential information during the course of their employment and following termination.
  • To reiterate the confidentiality requirements set out in the employee’s employment contract or impose new confidentiality obligations if the employee’s contract lacks such provision when entering into a settlement agreement.
  • To prevent either the employer or employee from disclosing the terms of a settlement agreement.

Employers have run into difficulty in recent years as employees have overturned or disclosed the nature of their NDAs or settlement agreements in order to make protected disclosures. Protected disclosures relate to any disclosure of information where an employee has a reasonable belief that one or more of the following has happened, is happening or will happen in the future:

  • A criminal act.
  • Failure to comply with a legal obligation.
  • A miscarriage of justice.
  • Endangering the health and safety of any individual.
  • Environmental damage.

It must also be shown that the information being disclosed has been, is being, or is likely to be, deliberately concealed. When making such disclosures an agreement will be found to be void insofar as it prevents an employee from making a protected disclosure. Employers should, therefore, consider whether NDAs are a good use of time and resources in such situations. 

 Moving forward with settlement agreements, NDAs and confidentiality clauses, employers should ask the following questions:

  • If entering into a standalone NDA, whether the effect of the NDA will be to prevent the employee from making disclosures to the police, health and care professionals, or other regulated bodies. If it does, the confidentiality terms may not be valid.
  • If entering into a settlement agreement, will this be entered into following allegations of illegal conduct such as discrimination or sexual harassment and will the terms of the agreement seek to prevent the employee making protected disclosures? As above, the confidentiality terms, if they relate to a protected disclosure, may not be valid.
  • Whether it is possible to rely on existing policies and if enough has been done to create a workplace culture where employees can discuss their concerns openly with their employer.