The government has a clear expectation that all employers, including universities, should only use non-disclosure agreements (NDAs) where appropriate and necessary. Any misuse of NDAs by universities to hide workplace discrimination or harassment or to withhold details of student complaints is completely unacceptable and not only can distress individuals but also risks bringing our world-leading higher education system into disrepute.
Although there is a range of legitimate reasons why universities may use NDAs including, for example, the protection of commercially sensitive information related to university research, we recognise their misuse is an area of concern. The government consulted on the misuse of confidentiality clauses in employer/employee relationships in 2019, and in response announced that we will legislate to prevent the misuse of NDAs in the workplace – including those being used to cover up harassment and discrimination. This will strengthen protections for individuals and create a fairer workplace for all.
The Office of the Independent Adjudicator for Higher Education (OIA) is the independent body set up to review student complaints in England and Wales. They also provide good practice guidance on resolving student complaints more generally and have published a briefing note for providers on handling complaints involving sexual misconduct and harassment.
The OIA view is that it is not normally appropriate or in the spirit of their scheme to expect a student to sign a complicated or legally binding settlement agreement, or to sign a confidentiality clause. To do so may mean that any lessons to be learned from the complaint are lost.
Sexual misconduct, discrimination and harassment are unacceptable in higher education, as elsewhere, and government expects higher education providers to have robust and appropriate policies and procedures in place to handle effectively disclosures and reports of such behaviour by students or staff.
The Office for Students (OfS) is currently consulting on its approach to regulation and its expectations for providers in addressing sexual misconduct and harassment in their institutions. This consultation closes on 27 March 2020. Government officials meet at least quarterly with both the OfS and Universities UK specifically to discuss making progress on tackling harassment in higher education.