“Gagging clauses” – time to treat the causes not the symptoms

By Cathy Byrne

£90 million – that’s big bucks. A recent report by the BBC showed that UK universities spent near enough that amount on pay-offs with Non-Disclosure Agreements (NDAs) also known as “gagging clauses” since 2017. UK universities are being accused of using these confidentially agreements to stop bullying, discrimination and sexual misconduct allegations becoming public.

If true, then this is certainly a worrying development.

Don’t get me wrong, I’m not against the use of NDAs in principle. They can serve a really important function, if used properly, as they help organisations maintain a competitive advantage by keeping innovative ideas, products or services under wraps.

What’s a cause of concern is that in some organisations and businesses, they increasingly seem to be used to silence employees who want to speak out about poor behaviours or practices in their place of work. To me, that’s focusing on the symptoms rather than the causes. And also, the simple fact is that often the truth will out anyway. Companies and organisations can spend large sums on confidentiality agreements but many whistle-blowers are willing to take risks to tell the truth.

Perhaps the corporate law sector needs to get up to speed with the impact of their counsel on their clients' long-term reputation. How many times have we seen vague, non-committal statements designed to avoid legal exposure that end up damaging trust in the long term. So how effective is this temporary fire-fighting anyway?

I believe the best companies are the ones that set out a clear vision, purpose and values and then live by them. They involve employees in setting standards for expected behaviours and actions.  They invest time and resources in helping employees speak out about work-related issues without fear of retribution. They actively encourage a culture of empowerment and transparency with a zero tolerance policy on behaviours that fall short of expectations.

And they’re brave. Rather than brush poor practices under the carpet by excessive use of over inflated NDAs they tackle these issues head on.

I recently met an in-house lawyer for a global company who, in the wake of the #MeToo movement is heading up a division focused on addressing internal complaints about sexual harassment and discrimination. It’s created a safe environment for colleagues to raise any concerns about sexual harassment or discrimination.  That’s a sign of a company that means business in stamping out sexual discrimination and harassment.

In an age where trust in businesses and other institutions is declining, let’s champion those organisations and businesses that are doing their best to live by their values and purpose. Let’s keep NDAs the preserve of lawyers solely focused on protecting sensitive commercial information rather than tools to hide unacceptable behaviours in the workplace.

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