20 April 2019

The scandal of university non-disclosure agreements

By Tom Westgarth

For centuries, universities have been the home of the intellectual. They have long incubated tolerance and respect for differing ideas—but things have changed.

A new BBC report reveals that higher education institutions, including the University of Liverpool and University College London, have spent £87m on non-disclosure agreements (NDAs) to staff since 2017. These gagging orders have helped cover up bullying, discrimination, and sexual harassment allegations, preventing them from reaching the public. Rather than approach abuses head-on, the universities in question have swept them under the carpet.

Such contracts have no space in most of the public sector, particularly if they are being used to cover up inappropriate behaviour. If university staff and students are able to criticise ideologies like Islam and neoliberalism, they certainly ought to be able to scrutinise their own workplace.

Non-disclosure arrangements were designed to prevent employees from sharing trade secrets if they changed roles, which is legitimate and useful in areas such as protecting intellectual property. But as time has gone on, NDAs have been employed with an expanded definition of “secrecy” to cover information beyond the traditional bounds of trade secrets, often preventing an employee from leaving their employer and working in the same field. In the university sector, this behaviour is reaching a crescendo.

With 68 percent of research staff in higher education on fixed-term contracts (short term contracts that last for a specific, finite period), universities consistently abuse their power. In low-paid, insecure work, speaking up about an unscrupulous boss or bullying colleagues can get you labelled as a troublemaker, with predictable results. Up against an organisation with serious litigation power, complaining often looks pointless. So, with contracts constantly up for renewal, the only option seems to be dancing to the tune your masters play.

An academic, speaking under the pseudonym Amy, told the BBC that bullying from academic colleagues sparked her depression. Her NDA explicitly named one of the senior academics, who Amy called a “serial bully”. The NDA means that she is legally required not to reveal the details of the allegation at risk of being sued. And bullying is only one aspect of the problem — racist, sexist and ableist discrimination can be covered up by NDAs, and powerless employees are left to suffer in silence.

This monopolisation of the job market, under the guise of protecting company information, is not only reducing competition but restricting economic and social dynamism. If staff cannot articulate their grievances about the treatment they experience, how can we expect to eradicate it?

The fact the overwhelming majority of institutions are government-financed makes the situation even more difficult to stomach. Taxpayers will rightly be aggrieved to learn that their money is going toward paying “hush money” to victims of abuse. Rather than educating the next generation of doctors and nurses, millions have gone into pulling the rug over racist and sexist acts in our most respected institutions.

Richard Moorhead, professor of Law and professional ethics at UCL, told MPs that lawyers drawing up NDAs could be breaking the law, as confidentiality clauses written into the contracts are “plainly unenforceable”. Universities then take advantage of poorly resourced and legally uneducated staff who are often misled by the unclear wording of the Public Disclosure Act.

Universities may claim that employees can be protected when speaking out, but they fail to inform staff of this right. With over 4,000 such settlements agreed in the past two years, universities are clearly taking advantage of these legal grey areas.

Whilst policy-makers need to tighten up on NDAs, free speech must be protected beyond the campus classrooms. Members of staff deserve to be able to hold their employers to account. These kind of injustices have no place at a university, or anywhere else.

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Tom Westgarth is a Young Voices contributor who studies philosophy, politics, and economics at Warwick University.