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Required Nondisclosure Clauses in the Aid & Development Sectors May Keep Employees from Being "Whistleblowers" & Revealing Allegations of Misconduct

There are growing concerns that nondisclosure agreements are being used to cover up wrongdoing and reinforce power imbalances. Photo by: Jasn / CC BY-NC

Whistleblowers are raising concerns about the use of nondisclosure agreements within the global development and humanitarian sector, with some suggesting they are being used to suppress allegations of misconduct.

By Emma Smith // 21 September 2020

BARCELONA — Whistleblowers are raising concerns about the use of nondisclosure agreements within the global development and humanitarian sector, with some suggesting they are being used to suppress allegations of misconduct.

Also known as confidentiality or gag clauses, experts say they are becoming more common in employment contracts with development organizations, and are also sometimes used in termination settlements.

However, the secretive nature of such agreements — which prevents signatories from revealing certain information publicly — means little is known about how common they are in the sector or how they are being used.

Although there may be legitimate uses of NDAs, some worry the agreements are being used to cover up wrongdoing and reinforce power imbalances, despite promises from organizations to strengthen safeguarding policies and protect those who speak up.

‘Grave concerns’

Public awareness of NDAs has been rising since the #MeToo movement, when it emerged that victims and survivors of sexual harassment and abuse had been prevented from speaking out. A subsequent report from the Women & Equalities Select Committee of the British Parliament warned of “grave concerns” around the use of NDAs and said there was “insufficient oversight and regulation of their use.”

The international aid sector has a lingering sexual abuse problem. The United Nations sets standards that other organizations follow, but its track record shows it's not up to the job.

When it comes to nonprofits and the development sector, little attention has so far been paid to the issue — but discussions are quietly growing.

The CHS Alliance, a membership organization that aims to strengthen accountability in the aid sector, recently published guidelines on the use of NDAs after receiving a number of inquiries about whether they are in line with core humanitarian standards.

The guidelines suggest that NDAs are often appropriate and used lawfully by employers to protect confidential information, such as that collected from communities.

But in some industries, there have been concerns that NDAs are being applied unnecessarily broadly in employment contracts. Their use in termination settlements is also controversial.

When handling complaints around sexual exploitation and abuse, victims themselves may want a professional agreement to keep their cases confidential, CHS Alliance’s Executive Director Tanya Wood suggested in a blog on the topic.

“If the use of all NDAs was banned, we could end up marginalizing rather than empowering the people we’re aiming to protect,” she wrote.

Assuming all the necessary checks and balances are in place and that the process is transparent, there can be a place for NDAs in the sector, Wood told Devex. This means the person must be properly informed and not feel pressured into signing anything, she explained.

However, the U.K. parliamentary report notes that power imbalances mean employees often feel they have little choice but to reach a settlement that prevents them from speaking out.

The report — which was not specifically focused on employers in the sector but included several charities in the investigation — criticized the widespread use of NDAs to routinely cover up allegations of unlawful discrimination and harassment in the workplace, often with little or no investigation by employers.

Devex heard from one development professional, who previously worked with a faith-based NGO, who described how they felt pressured to accept a settlement including an NDA after a grievance against their supervisor for bullying and harassment led to a lengthy appraisal and disciplinary process. When the individual, who is from a minority group, refused the settlement, their contract was terminated just months later for poor performance.

Another professional who spoke up about bullying and sexual harassment in the same organization told Devex they thought long and hard before signing an NDA. However, they ultimately felt they had little choice but to accept a settlement after they were told they would otherwise be made redundant, without pay, due to an alleged issue with their work permit.

“[In] the sector ... there's no shortage of words about whistleblower protection and compliance [and] safeguarding and the amount of resources that have been put into it are phenomenal,” the source said. “But I just think that the kind of the measures that are being taken are, in large part, the wrong ones, and the danger is that they give a false sense of security.” 

While the individual's former employer had provided training to encourage staff to speak up, ex-colleagues have since said that they would not whistleblow after seeing what happens to staff who do, the source added.

The whistleblowers also spoke of the significantly different levels of legal support and settlement amounts offered to national and foreign staff working for the same employer. This only reinforced the “double standards that exist in the organization,” said the first source, who was employed as a country national.

Lack of transparency

Despite whistleblowers’ efforts to draw attention to the unethical use of NDAs in the sector, a lack of publicly-available information makes it difficult to know how frequently they are being used, and for what reasons. Gozel Baltaeva, people management advisor at CHS Alliance, said the use of NDAs in both employment contracts and settlement cases is poorly-tracked.

Asked about the issue, the Charity Commission, which is responsible for regulating charities in England and Wales, declined to share information on the number or nature of complaints it had received about NDAs since this data “isn’t very meaningful” and would not reflect those complaints which were “vexatious or unfounded,” according to a spokesperson.

CHS Alliance received only one complaint in 2019, and said it did involve an NDA.

However, the number of complaints registered — whether with a regulatory body or membership organization — likely fails to show the full picture.

Hari Raithatha, a legal officer at Protect, a U.K.-based organization that supports whistleblowers, said many people are unaware of their legal right to raise concerns after an NDA has been signed. The proportion of calls to the organization’s advice line coming from the charity sector almost doubled between 2017 and 2019 — now, making up about a fifth of its calls — and many of those inquiries are around NDAs and what people’s rights are, Raithatha said.

Wood also noted that when CHS Alliance does receive complaints, they are usually from professionals based in Europe. She cautioned that a lack of awareness about where to raise issues and a lack of confidence in those mechanisms can contribute to the silencing of development professionals working in field operations, in particular.

Making a change

While a lack of transparency makes it difficult to get a full picture of the situation, Protect is calling for new legislation in the U.K. to require “plainer English” in NDAs, and for lawyers to explain the limits of these contracts on future disclosures.

New guidance from Acas, an independent public body that advises on employment, is already clear that NDAs cannot be used to stop someone from reporting misconduct, including harassment and discrimination, or whistleblowing. But even where parts of an NDA may be legally unenforceable, they are still likely to have the effect of preventing the person from speaking out.

One of the whistleblowers who spoke to Devex agreed that if NDAs must be used in the sector then they should clearly specify what information cannot be disclosed and for how long. According to the source, this would make it much harder for charities to use NDAs to cover up wrongdoing.

They also suggested there should be stricter stipulations around recording and reporting NDA usage, including a statutory requirement to share this information with the Charity Commission on an annual basis. Employers should provide their “rationale for issuing an NDA, the scope and the cost,” the source said.

Baltaeva, of the CHS Alliance, went further, suggesting that NDAs should only be used when requested by employees themselves since a lot of organizational information is already protected by national laws and data privacy regulations. Used otherwise, NDAs can make it difficult for organizations to build a culture where “people feel safe to talk and that there will be no repercussions,” she said.

But while NDAs do have the potential to be abused, Wood said “the bigger issue is how people in the sector feel about speaking up” and whether organizations have the right complaint mechanisms in place and staff trust in these systems to hold their leaders to account.

In many cases, the current mechanisms don’t work, according to the whistleblower. If the highest level of governance that an employee can appeal to is the charity’s board and they approve the use of NDAs to cover up wrongdoing then “they will generally get away with it.” Instead, they suggested there should be a total ban on the use of NDAs and “buying silence with charitable funds.”


Извор: WUNRN – 22.09.2020


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