Universities, sexual misconduct and confidentiality

Sexual abuse on campus – an update on the UK perspective

We previously mentioned a rise in reported incidents of sexual assaults and misconducts made by students in the UK, here.

The BBC reports that universities are using non-disclosure agreements (‘NDA’) – commonly known as ‘gagging clauses’ – to prevent students from publicising complaints about sexual assault on campus. BBC News asked UK universities how many students had signed NDAs since 2016 and how much, if any, money had been paid out to them.  Almost all the UK universities replied.  45 universities said they had used NDAs and 300 students had signed NDAs.  However these figures are thought to underestimate the true picture, as some universities provided limited information in answer to the BBC’s queries.  In the article two students say they reported sexual assault by fellow students to their university.  They criticise their respective universities for offering insufficient support and using NDAs.  Another student is critical of her college for offering financial settlement and a NDA after she reported safeguarding concerns.

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Non-Disclosure Agreements in Scotland

Non-Disclosure Agreements (NDAs) were originally used to keep commercial business information and trade secrets confidential.

In more recent years, the use of NDAs to try to silence allegations of abuse and harassment has generated significant publicity. There is no sign of that controversy abating.

Earlier this month, the Arbitration service Acas published guidance to firms and workers about NDAs, including how to avoid misuse. The point is made that NDAs cannot prevent an individual from reporting wrongdoing in the public interest, known as making a protected disclosure or ‘whistleblowing’. This could include disclosing a criminal offence, dangers to health and safety, or failure to comply with a legal obligation. NDAs also cannot prevent an individual from taking a matter to an employment tribunal. The advice given by Acas to employees is to consult a trade union or lawyer when considering signing an NDA.

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Government called to re-set parameters for NDAs

As a result of the recent inquiry into sexual harassment in the House of Commons, which urged the Government to review the use of non-disclosure agreements (NDAs) in sexual harassment claims, the Women and Equalities Committee was tasked with carrying out an inquiry to look at the widespread use of NDAs in cases where any form of harassment or other discrimination is alleged.

On 11 June, 2019 the Women and Equalities Committee published its report on the use of NDA’s in discrimination and harassment cases.

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Harassment and sexual misconduct scandals at law firms

The #MeToo movement gained significant international attention following allegations of sexual assault and harassment by some of Hollywood’s stars. Following these revelations more prominence has been given to investigating and addressing harassment and sexual assault allegations especially within the workplace. As with many professions and industries allegations relating to the legal profession are coming to light. Continue reading