Everyone gets why non-disclosure agreements and strict media engagement rules are used in colleges. But concerns are growing that a tight-lipped approach is detrimental to the sector. Jess Staufenberg reports
Non-disclosure agreements and confusing freedom of speech policies are silencing college staff with potentially valid insights and criticism of the sector, FE Week can reveal.
Multiple current and former college staff who have signed NDAs as both employers and employees say their use tends to be automatic and unquestioned across FE – and could cover up discrimination against minority groups.
At the same time, the huge variation in freedom of speech policies for staff wishing to share their professional opinion in public forums means some risk losing their jobs, while others are encouraged to share.
It comes as part of an FE Week investigation revealing data on NDA use and the content of media engagement policies in colleges for the first time.
We sent Freedom of Information requests to 60 colleges – the 20 largest, 20 medium-sized, and 20 smallest colleges by ESFA funding allocation – to get a spread of responses across college sizes.
Of these, 34 responded with the full data. It shows the use of NDAs affects only a small percentage of staff in colleges as a general rule. But, some colleges have seen significant rises.
For instance, across the 34 colleges, 111 staff signed confidentiality agreements in 2021-22, equivalent to 0.5 per cent of the total staff employed, a rate not much changed from 2018-19.
Meanwhile, the biggest increases in use of NDAs and confidentiality settlements between 2018-19 and 2021-22 was at Leeds College of Building (from 0.5 to 1.5 per cent of staff, or from two to six people), Luminate Education Group in Yorkshire (from 0.1 to 1.1 per cent of staff, or from one to 20 people) and Capel Manor College (from none to 0.8 per cent of staff, or from zero to three) in London.
However these figures will include confidentiality clauses that are routine in many settlement agreements and not necessarily targeted ‘non-disclosure’ or gagging clauses.
Too quick to act
But, despite the small proportion of individuals affected, staff claim that the route to non-disclosure agreements is often too quick, and their impact on both individuals and the sector unconstructive.
One college leader, who did not wish to be named, and signed an NDA with an employee last year, says NDAs “don’t serve anyone particularly well”.
Firstly “there’s a history of them being used for failed chief executive staff, and then that can just lead to people popping up elsewhere”. This is also true of poorly performing employees, he continues, who “might go off sick and stop engaging.”
This is costly to the college, which provides full-time sick pay for the first six months, and half pay for the next six months. Then, if the employee threatens an employment tribunal, “it really raises the stakes” with colleges unsure if they may end up paying out £20,000 or £200,000 (the amount is uncapped if a discrimination claim is won).
“You can end up paying people more than they should get,” says the college leader. It means colleges are often “strongly advised” to offer an NDA – including an agreed reference for their next job.
“They’re encouraged. They’re familiar tools to HR practitioners, to unions and to the legal profession. Those are often the three people sitting in the room.”
As a result, there is a “tyranny” of NDAs in further education, he adds. “The problem is, how do you manage sector quality when no one is allowed to talk about it?”
The problem is, how do you manage sector quality when no one is allowed to talk about it?
Questions from MPs
The issue of NDAs has attracted attention from MPs and government too.
In 2019, the women and equalities committee said it was “particularly concerned that some employers are using NDAs to avoid investigating unlawful discrimination and harassment complaints”.
In response, the government said NDAs must not include “provisions” that prevent or imply that someone cannot pass information to the police, healthcare operatives, and lawyers.
The move led universities to commit to a pledge not to use NDAs with students who bring sexual harassment claims in January this year.
But the issue of poor performance doesn’t seem to have been resolved under this clarification. It is more clearly touched upon in 2015 Cabinet Office guidance on settlement agreements, which states: “Settlement agreements should not be used to cover up individual or organisational failure”.
Becoming standard practice
However, Andy Forbes, a former college leader who issued NDAs and been subject to one, says they are being used to do just that.
“If someone were to wrongly raise allegations against a college after being dismissed, then surely the college has remedies under libel and slander law?” he asks.
“It’s almost now seen by many HR lawyers as standard practice, as if it’s just the preferred route to go down. I’m not sure if anyone’s really thought through properly why we do this.”
I’m not sure if anyone’s really thought through properly why we do this
At the same time, Forbes says NDAs are also being used to cover up discrimination, despite the government’s rhetoric that this is not acceptable.
“There is such a lack of transparency it is difficult to evaluate, but I suspect this is having a bad effect for staff from black and minority ethnicity backgrounds, women and others. The danger is NDAs stop the discussion and debate around that.”
Discrimination and cover ups
FE Week heard of three examples of college leaders signing non-disclosure agreements and having to leave their jobs in circumstances they believe may have been related to discrimination.
A former senior leader, who does not wish to be named, says he was on the senior leadership team of a college where the principal was bullying a female member of the SLT.
“My colleague came to see me and she was in floods of tears, saying she felt threatened. I was absolutely dumbfounded, and I said I will try and put a stop to it. She was on the verge of a breakdown.”
But the principal said not to get involved and continued to bully the female colleague, he says. “So, in the end I contacted the chair of governors, the principal’s line manager. He told the principal that he needed to retire.”
But in the final months before the principal retired, he threatened to fire the senior leader who had alerted the chair of governors unless he left with an NDA, according to the latter.
Three other staff members, all with protected characteristics, and who had also been “whistle-blowers” to governors about the principal, were also removed from their jobs, he says.
“It was most unsatisfactory. The principal got off scot-free, and I got booted out for trying to resolve the issue. I had tried to stand up for a female member of staff and I lost my job.”
The principal got off scot-free, and I got booted out for trying to resolve the issue
The governors should have set up a formal investigation into the discrimination claims against the principal, not let him retire, he adds.
Conscious or unconscious bias
Another former college leader, who did not wish to be named, says their chair of governors wanted to remove them with an NDA after they were prevented from attending college every day by a long-term health condition.
Their lawyer said they had a case for discrimination on disability grounds, according to the former leader. “But I decided not to pursue it as the courts were backed up two years and it could cost up to £50,000.”
Trade unions such as UCU offer legal services for tribunals free of charge, but do not cover the costs of any costs or damages awarded against union members, according to its website.
The former leader says the chair’s move came after they had tried to improve minority ethnicity representation on the governing board. “It does seem to me there is conscious or unconscious bias,” they added.
Derogatory remarks
In another scenario, a former college chief executive, who is no longer in the sector, says their career was “ended” when they challenged their chair of governors over their persistently derogatory remarks about female managers, alongside other issues.
They reported the behaviour to the college’s lawyers, but later received a call from the same lawyers saying the chair had lost confidence in them as chief executive and they needed to sign an NDA and leave.
“I went for a couple of CEO jobs afterwards, and I don’t know if they’d found out what happened, but I felt on both occasions I’d got no chance. I’d also lost my confidence a bit.”
Lack of accountability
Like multiple other members of staff FE Week spoke to, the former CEO says misuse of NDAs is worsened by chairs being too unaccountable.
“The chair is accountable to nobody. This particular chair had built a little powerbase on the board, and it had made them impregnable.”
Another former college principal says they and their chair of governors were told to resign by the FE Commissioner’s office when the college got two ‘requires improvement’ Ofsted outcomes and a financial notice to improve.
The chair resigned but the principal refused: “It’s not standard practice to remove a principal for a ‘requires improvement’ judgment.”
A monitoring inspection found improvements and the following year the college moved into a surplus position, the former principal claims. But the new chair of governors offered the principal “two press releases – one saying nice things if you settle. One won’t if you’re dismissed”, says the former principal.
At first, they considered an unfair dismissal claim – but “that could have cost me £30,000. So, I signed the NDA.”
“I think it’s scandalous. It’s shameful,” they tell FE Week.
Help for college staff
Colleges should be accountable to the local authority and not governing bodies, so if there is an issue with governance or the FE commissioner, there is an official route for escalation within a public body, the former principal adds.
In a 2020 report entitled ‘Voices of the Shamed’, the now-closed Further Education Trust for Leadership echoed the above concerns.
It said “the regulator seems to put pressure on governing boards to collude in a diagnosis” of weak leadership, adding “non-disclosure agreements prevents challenge, denying redress”.
An independent office for college staff to raise concerns about governors is needed, adds Forbes.
“It would be better to have a system like they have in Scotland and Wales, where chairs of governors are public appointments and have to be ratified by the education department,” he says.
Improving the expertise of governors is in the Department for Education’s sights.
The skills for jobs white paper states the government wants “strong expectations” that corporation board members “undergo suitable training” and also recruit more minority ethnic board members.
But while the paper calls for better governor expertise around finance and estates, it doesn’t mention expertise around good HR and staff development practice.
More principal protections
However, Anne Murdoch, senior advisor for college leadership at ASCL, says governors unhappy with a principal’s performance should have procedures in place to ensure their concerns are “watertight” before acting.
“The chair might make a complaint to a committee, and a committee of governors would need to check that the chair’s complaint was correct. In my experience, it is done properly.”
An appeals procedure should allow a principal to challenge the action against them, Murdoch says, and they can also involve their union.
Confidentiality agreements also should not prevent whistleblowing, says Siobhan Mulrey, senior associate solicitor at law firm Irwin Mitchell, also lawyers for the Association of Colleges.
Under the employment rights act 1996, a ‘qualifying disclosure’ about an organisation can always be made if it is “in the public interest” and shows one or more of the following has occurred or is likely to occur: a criminal offence; failing in a legal obligation; a miscarriage of justice; threat to health and safety and environmental damage.
Discriminatory activity would fall under failing a legal obligation, Mulrey explains. But the “public interest” element means it “has to affect more than one individual”, she explains.
In other words, an individual can’t “blow the whistle on their own treatment” after signing an NDA and instead “it’s about things that have a wider impact”.
But even then, Mulrey would advise caution to an employee who has signed a settlement agreement.
“They would need to be pretty confident that the disclosures they were making were clearly permitted under the terms of the contract if they wanted to whistle blow.”
Public speech confusion
Muddying matters further is disagreement around what staff should be able to speak and write in public spaces, such as blogs and news websites.
College staff have raised concerns about being prevented from publishing written articles, despite not using hate speech or evidently bringing the college into disrepute. In one case, a member of staff reports they lost their job over the issue.
It comes as FE Week can reveal only a few colleges have a clear media policy, with the majority only having social media policies.
We asked 60 colleges to provide their stated policy or contractual terms around staff expressing their opinions in a public space, such as in the media or on a panel discussion.
Lack of clear policies
Of the 28 that responded, only six had policies with explicit instructions on media engagement: Hereward College, East Coast College, Bedford College, Luminate Education Group, College of West Anglia and Sheffield College.
For example, Hereward College in the West Midlands says “employees should not speak, write, give interviews or take telephone calls for information relating to the college”. And at Sheffield College, “any staff directly approached by the members of the news media should re-route all enquiries to the head of media relations”.
But this advice largely imagines that a staff member has been approached by a journalist to comment or make a statement.
Only three of the media engagement policies are clear about whether a member of staff may write a piece with their own views that can then be published in the media or elsewhere that isn’t social media.
So, East Coast College states that staff who wish to write in the media “on any aspect of the college’s affairs” must obtain permission in advance. Of course, the question remains what does and doesn’t count as college affairs.
At the Bedford College group, meanwhile, the writer must not be associated with the college group’s name to publish something.
If “staff publish any material that explicitly mentions the group or one of its brand by name” or even if “it is well known in the sector that a member of staff works for the college”, then college approval is needed beforehand, the policy states.
For the remaining colleges, there is a mish-mash of approaches to public speaking and writing.
Staff are required to hazard a guess from across social media policies, codes of conduct and their contract of employment.
Right to express an opinion
Three colleges (Strode College, Harlow College and Leeds College of Building) all provided the same wording from a paragraph in employee contracts of employment.
It states staff must not share confidential college information but, aside from this, “affirms that academic staff have freedom within the law to question and test received wisdom relating to academic matters”.
They may also “put forward new ideas and controversial or unpopular opinions about academic matters without placing themselves in jeopardy or losing their jobs and privileges”.
A staff member, who does not wish to be named, says they thought they were covered by this general principle of academic freedom – and the legal right to freedom of expression – when they wrote an opinion blog sharing their thoughts on pedagogy and policy.
‘Just bonkers’
But the college’s leadership, they say, summoned them to a disciplinary investigation.
“The senior leaders were making remarkable accusations, about the reputational damage and how it could impact the future funding of the college.
“It was just bonkers. It’s like saying the DfE are a corrupt organisation,” they said.
Meanwhile, the blog had “circulated in professional circles and been positively received.
“It was traumatic to be honest. It was just part of the culture of the place, it was toxic. And at the end of that, you know you’re in a position where there isn’t a future ahead of you.”
The staff member was asked to take voluntary severance pay and now works elsewhere in the sector.
“With an HE member of staff, you would expect them to contribute to academic debates, wouldn’t you? You wouldn’t expect them to go through marketing every time.”
They add: “It’s restricting your own professional development and your professional profile if you’re not allowed a voice. You want to put that kind of thing on your CV or LinkedIn.”
‘Articulate arguments freely’
Another member of staff in a different region of the country, who also did not wish to be named, published an opinion blog about their profession – one they say was signed off by two line managers.
Despite this, they say college leaders emailed them condemning the article in “strong words”. The staff member says they met with HR to ask questions.
“I said, are you saying no to publishing anything ever? No to publishing in certain places? If it’s on a case-by-case basis, what’s the criteria? Can I appeal a decision?
“We’re an educational institution, we should be training our students to articulate their arguments freely. But we seem to promote the opposite for our staff.
“I’ve been angry and shocked about it,” they add. “We should be part of the debate about FE. I don’t want to be a person who doesn’t wish to be named.”
FE Week can reveal the college attended by the above staff member is one of the many who provided us with their ‘freedom of speech’ policy.
These policies state the college’s commitment to freedom of speech as enshrined in law by the European Convention on Human Rights and Human Rights Act 1998.
Inherent contradictions
But sometimes other college guidelines seem contradictory. For instance, the code of conduct at one college group says “employees have academic freedom within the law…to put forward new ideas or controversial or unpopular opinions”.
But its social media policy, a separate document, says employees must not post anything “critical of the college” or “contradictory” to the college website, and advises they “avoid arguments” online.
Siobhan Mulrey, senior associate solicitor at Irwin Mitchell, says her team is seeing increasing enquiries about staff expressing a written view.
“Without knowing the details, it seems a pretty harsh response,” she says of the employee who says they lost their job over their opinion blog.
“Sometimes we have to challenge clients to some degree as theirs can be a knee-jerk reaction. Employers might say ‘this is damaging to our reputation’ without any evidence to suggest the reputation has been damaged. That must be proven to justify a fair dismissal.”
Meanwhile, a spokesperson for ACAS (Advisory, Conciliation and Arbitration Service), which is a non-departmental public body that provides advice around employment rights, told FE Week:
“When establishing media engagement policies, employers should agree the details with employees and employee representative groups,” adding policies should be “reviewed regularly”.
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