Written submission from the 1752 Group (NDA0048)

Summary

• NDAs are signed by students as part of settlement agreements with higher education institutions, which are not made public.
• NDAs are routinely used in cases of staff sexual misconduct in higher education to impose confidentiality of outcomes and their continued use and the impact these agreements have on students who experience and report sexual misconduct needs to be addressed.
• Students who bring complaints to their institution may not have access to legal support, compared to academic staff who do have access through union membership. This means NDAs can be signed without seeking legal advice, and students may not know what the confidentiality entails and what rights they have in speaking about their experience.
• NDAs can protect perpetrators and enable them move to new institutions, creating the issue of serial harassers.
• The UK should ban the use of NDAs in settlements used by higher education institutions in cases of sexual assault, harassment and discrimination cases. Higher education institutions should make public the outcomes of investigations into the sexual misconduct of staff.

1. The 1752 Group is a research and lobby organisation formed in 2016 to address staff-student sexual misconduct in higher education. We conduct research, develop policy guidance and lobby nationally for change in the sector.

2. The 1752 Group definition of ‘sexual misconduct’ encompasses behaviour that involves forms of power enacted by academic, professional, contracted, and temporary staff in their relations with students (this can also occur between staff members). Sexual harassment is one of many behaviours encompassed by sexual misconduct, which can include grooming, bullying, assault, sexual invitations, comments, non-verbal communication, creation of atmospheres of discomfort, promised resources in exchange for sexual access. It impacts students of all gender identities and sexualities.

3. The 1752 Group has been campaigning nationally to end NDAs and has developed guidance and a letter that can be sent to Vice Chancellors: https://1752group.com/end-ndas-campaign/.

4. The 1752 Group was borne from the activism of a group of PhD students at Goldsmiths, University of London who reported incidents of sexual harassment, sexual misconduct and sexualised behaviour from academic staff within the Centre for Cultural Studies in 2012, and worked together for four years to get the university to take action.[1] Several members of this group held the first UK conference in 20 years on this issue in 2015.[2]

5. Due to the fear of reprisals and bullying from staff members, the group of PhD students first made an anonymous report to Goldsmiths in November 2012. As a result of a lack of action taken to address the reported behaviours and culture of the Centre, I made a formal complaint in January 2014. A disciplinary hearing for my former PhD supervisor took place and I gave evidence at this hearing. I was not informed of the outcome, other than the academic was no longer at the institution. I signed a NDA with Goldsmiths, University London in June 2014.

6. In my personal experience of having signed a NDA, as well through the case work we have conducted with The 1752 Group in supporting other students, there is much fear and uncertainty associated with the scope and power of NDAs. As a group of PhD students, we did not know who we could consult with, or what we could share about our experience, including with each other. It was only several years later when we spoke to the law firm, McAllister Olivarius, who The 1752 Group now partners with, that we understood we had the right to continue to talk about our experiences. The absence of information and legal support as to what a NDA entails can act as an effective form of self-silencing. It provides even greater powers to institutions, where students are in fear of breaking the contract they have signed with the institution.

7. Dr Leila Whitley and I wrote the 2015 journal article on staff sexual misconduct, “Sexism at the Centre: Locating the Problem of Sexual Harassment.”[3] In this article we argue that confidentiality is used to limit the damage to the reputation of the university and to safeguard the professional reputation of the employee. Critical to the confidentiality that is attached to the use of NDAs, is the ability for higher education institutions to obscure the problem of sexual misconduct occurring at the institution, and to silence those who make complaints. The concealment of sexual misconduct also enables staff members to move to new institutions, presenting the issue of serial harassers. The sexual misconduct behaviours of staff are protected through the use of NDAs, putting students at their current and future institutions at risk.

8. There has been no prevalence study conducted on the issue of staff sexual misconduct in UK higher education, and there is no data available on the frequency of use of NDAs by higher education institutions in cases of staff sexual misconduct.

9. There are currently no national guidelines on how universities should prevent staff sexual misconduct or respond effectively when it happens. The Universities UK ‘Changing the Culture Report’ 2016 did not address the impact of staff sexual misconduct. The Universities UK has recently convened a Staff-Student Sexual Misconduct Advisory Group, which is tasked with developing the first sector guidance on this issue. The 1752 Group is a member of this group. There is no necessity for universities to record cases of staff sexual misconduct or provide local and national reporting of data. 32% of universities surveyed by The Guardian and reported on during its investigations in 2017 had no student-staff relationship policy.[4] Universities have different policies and complaints procedures. This means students at different universities experience vastly different levels of support and have vastly different outcomes to reports/complaints, including being presented with settlement agreements and NDAs.

10. While higher education institutions can state that a NDA signed by students and staff is designed to protect the students from retaliation, in my own experience the confidentiality required by these documents is routinely broken by staff members and others familiar with the case, with few consequences. Students who signed NDAs continued to be bullied and subject to rumours while remaining at Goldsmiths. Yet due to having signed an NDA and their perception of the confidentiality required by the document they had signed these students could not defend themselves or refute the false allegations being made.

11. NDAs prevent transparency in the case of staff sexual misconduct. This includes transparency of outcomes of disciplinary hearings. Students can remain on campus with the staff member, without knowing what, if any, disciplinary action has occurred. This can serve to erode the trust that students have in using institutional reporting and complaint mechanisms. The use of NDAs also means that staff members who engage in sexual misconduct may not be known to their colleagues – at present and future institutions, creating unsafe places of work.

12. In the first national survey on staff-student sexual misconduct in UK higher education conducted by the National Union of Students in 2017/2018, and advised on by The 1752 Group, of those survey respondents who reported staff sexual misconduct to their institution, 90% of those reported at least one way that their institution had failed them (National Union of Students. 2018. “Power in the Academy: Staff sexual misconduct in UK higher education”). One of our key recommendations from the report was:

New guidance should be provided by the Office for Students and Universities UK to prevent the use of non-disclosure agreements in future settlements between universities and students, to allow greater transparency and trust to build between students and the sector.[5]

13. The 1752 Group, in partnership with law firm McAllister Olivarius, has produced the document “Recommendations for Disciplinary Processes into Staff Sexual Misconduct in UK Higher Education” that is intended to deliver sector guidance to ensure a fair and transparent disciplinary process for dealing with staff sexual misconduct.[6] In developing this guidance, we sought and received sector input through a consultation period held in 2018. We held a meeting in December 2018 where we invited higher education HR and legal staff, and representatives from relevant sector organisations to feedback on the guidelines. These are currently being updated and will be finalised by May 2019. In this guidance under ‘Confidentiality of Outcomes’ it states:

We recommend upheld outcomes and disciplinary sanctions applied should be shared with the complainant. There should also be further consideration of how and whether such outcomes could be made public. One or more of the options below should be considered:

▪          University-wide public records of the outcome of an investigation.

▪          Waiving of confidentiality at the end of the process for both parties.

14. The use of NDAs prevents higher education institutions from being held accountable for the actions of employees and contract staff. NDAs are part of a process that enables staff members to move to new institutions, without knowledge of disciplinary actions taken, resulting in serial offenders. They result in a culture of silence around sexual misconduct, and prevent effective change on this issue. NDAs can be signed when staff members resign rather than face disciplinary action, which protects the staff member, and the institution.

15. The 1752 Group calls for the banning of NDAs by higher education institutions, and transparency in outcomes of disciplinary hearings.

January 2019