Non-disclosure agreements and students – expectations from 1 September 2024
As we pointed out in our blog yesterday, tighter regulation of confidentiality agreements (NDAs) has been an important component in two major policy initiatives that we have been following over the past couple of years: the Higher Education (Freedom of Speech) Act 2023 (FoSA) and the new condition of registration (E6) proposed by the Office for Students to address harassment and sexual misconduct on campuses.
The Government recently revoked the commencement order which had been due to bring much of FoSA into force, including a requirement that Higher Education Institutions (HEIs) not enter into non-disclosure agreements with staff / members / students or visiting speakers in relation to a complaint made to the HEI by that person if it related to (broadly) sexual misconduct or bullying and harassment.
However, a few days later the OfS published the final version of condition E6, with the OfS deciding to bring the new requirements in relation to NDAs into effect from 1 September this year. This means that HEIs “cannot impose any provision that would prevent or restrict any student from disclosing information about an allegation of harassment and/or sexual misconduct which involves or affects one or more students”. Harassment here means not only conduct which would infringe the Equality Act, but also harassment within the Protection from Harassment Act 1997 (which does not need to be connected to a particular protected characteristic).
Whether this will require a significant change of approach within your HEI depends on how closely you have been following the guidance of the OIA and UUK. The OIA position has been for some time “that providers should think carefully before including a confidentiality or “gagging” clause in any settlement offer” and the OIA’s Good Practice Framework Good Practice Framework - Handling complaints and academic appeals (oiahe.org.uk) includes that “It is not good practice to ask a student to sign a confidentiality agreement or non-disclosure agreement as a part of an offer to settle or resolve their complaint. Such agreements can leave the student feeling that their complaint has not been listened to or taken seriously, and can mean that learning from the complaint is lost”.
UUK has also been clear in recommending that HEIs consider “Avoiding the use of non-disclosure agreements (NDAs) or confidentiality clauses in settlement agreements in cases of sexual misconduct and harassment to prevent reporting parties from speaking out or to restrict what the university might disclose to others. This is important in the context of staff-to-student sexual misconduct, because the use of NDAs has enabled staff to move between universities.”
It is also worth noting that if your HEI is one of the over 80 that has signed up to the “Can’t buy my silence” campaign, co-founded by Zelda Perkins, then it has already pledged not to use NDAs “to silence people who come forward to raise complaints of sexual harassment, abuse or misconduct, or other forms of harassment and bullying.”
The general principles of the new rules on NDAs in Condition E6 may have been followed in practice by many HEIs for some time already, but HEIs would be well-advised to check, and to consider the detail of E6 in this regard. Even if you do not currently rely on NDAs with students, you should review your policies and guidance, any template documents, and your training for relevant staff, to ensure that they explicitly reflect good practice. There are also provisions within E6 that go beyond some of the good practice already in place, for example the requirement that HEIs “Consider how to best prevent the use, enforcement and/or reliance on non-disclosure agreements (NDAs) in matters relating to harassment and/or sexual misconduct by third parties, such as placement providers”.