HR must find its backbone and stop using NDAs
Neil Morrison, January 02, 2020
NDAs are about power, they are about control, they are clauses that are used to silence victims of organisations that have done wrong
Sometimes I think our profession is much like the British weather. We are obsessed with talking about its shortcomings, but nothing can be done to change it.
My frustration is compounded in the rare moments when we genuinely have an opportunity to act for the betterment of the world of work, but instead choose to hide behind indecision and equivocation. There is no clearer example of this than the ongoing debate on the use of non-disclosure agreements (NDAs) in settlement decisions.
The broad reaction from the legal and HR professions (and their governing bodies) is weak and depressingly similar when it comes to NDAs. ‘It depends on how they’re used’ comes the common response.
Ultimately this suggests the clauses themselves aren’t bad – it’s just that bad people use them. But this is akin to asking the National Rifle Association to opine on gun control. Because every NDA included in a settlement agreement will have had a lawyer draft it and another read it on behalf of the employee.
Pause for a second and let that sink in. In every case where a settlement agreement has been used with an NDA to silence a victim of harassment, discrimination or bullying, the overwhelming likelihood is that a legal professional has not only acted for the perpetrator, but for the victim as well.
We’re not off the hook here either. The HR profession is in many (if not most) cases entirely complicit. So is it a surprise that we argue for NDAs’ continued usage?
In the same way that gun control is the only sensible way to ensure people are protected from shootings, the only way to ensure that NDAs are not incorrectly applied is to ban their use in settlement agreements altogether.
When I point this out a familiar riposte is to talk about business interests and confidentiality and make the bold statement that NDAs are in the interests of the employee. This is intentional obfuscation, so let’s put these myths to bed.
You can have a confidentiality clause without an NDA. The Law Society describes it as follows: ‘Confidentiality clauses, which may include terms commonly referred to as non-disclosure agreements, within settlement agreements are used to stop commercial information from being shared inappropriately and to avoid reputational damage.’ It is this last point that is central to their use, where clauses are inserted to prevent the employee from talking about the incident that led to the use of the agreement or indeed to disclose the existence of the agreement itself.
No-one is talking about banning confidentiality clauses that reaffirm those that already exist in a contract of employment, just banning the use of NDAs to silence employees.
Now let’s take the idea that this is in some way in the interest of the employee. I’ve asked on numerous occasions for someone to give me an example where this is solely the case – where there is no interest in reciprocity from the organisation. Unsurprisingly, I’m still waiting to hear of one. The logic of this assertion is flawed in itself, because if non-disclosure was generally in the employee’s interest then they wouldn’t be looking to disclose it in the first place. This argument is generally used as a sinister arm twist that ‘it will be in your best interest if we say nothing about this matter…so you better not either…’
NDAs are about power and control; they are clauses used to silence victims of organisations that have done wrong. There may be the very odd case where they could legitimately be argued for, but their punitive use far outweighs any benefit. Every case of sexual harassment, discrimination, bullying, intimidation and unfair treatment that leads to the use of such a clause is a terrible indictment on the HR profession and our colleagues in the legal profession too. There is only one safe answer in my mind and that is an outright ban.
Until that comes about, and until our professional bodies find their backbones, I ask you to take the lead and change your practice now.
Neil Morrison is director of HR at Severn Trent Water