Irish third-level institutions are using public money in non-disclosure agreements (NDAs) “to silence victims of discrimination and sexual harassment”, the Seanad has been told.
Independent Senator Lynn Ruane, who in June introduced legislation to ban the use of such confidentiality agreements, has conducted research including a survey which, she said, confirmed the use of NDAs in third-level institutions.
Opening a Seanad debate on sexual harassment and bullying in third-level institutions, the Trinity College Senator said that in almost two-thirds of cases perpetrators were members of academic staff and 30 per cent of victims were forced to sign NDAs, which “represented a bully and abuser free to walk away to another college and a victim being silenced”.
An NDA is a “binding and contractual agreement that prevents one or more parties from disclosing knowledge designated by the institution as confidential” even if they relate to bullying or sexual harassment complaints.
Originally introduced to protect business and industry secrets, she said, “they are increasingly being used in the third-level sector to silence victims of bullying, discrimination and sexual assault”.
“And it is public money that is often used to silence victims of discrimination and sexual abuse,” she said, adding that in the UK more than £90 million (€105 million) had been paid since 2017 to silence victims. She said there was no similar research on Irish payouts but she asked how much Irish institutions were paying.
She added that “some NDAs that have been signed in the university sector have been reframed in language” and not listed as sexual harassment but as a “clash of personalities” or “breakdown in working relationships”.
Minister for Further and Higher Education Simon Harris said such agreements have absolutely no place when cases such as these arise within institutions and workplaces".
The Minister said they “have the effect of silencing victims and in doing so they can prevent healing and recovery, and damage the prospect of accountability for perpetrators”.
He pointed to the impact of such NDAs where the victim cannot speak to anyone about their experience or tell their story to assist their healing or help other survivors.
“I will not be standing over the silencing of any victims of sexual harassment or bullying in Irish higher education institutions,” he said.
The Minister will next month introduce legislation through which universities and other third-level institutions that fail to comply with policies on bullying and sexual harassment will be sanctioned. The legislation will “modernise governance law in higher education”, he said.
“As part of this, I intend to propose that the Higher Education Authority will have the ability to set policies and guidelines in key areas such as this one, and to sanction non-compliance,”
He stressed that “the use of non-disclosure agreements runs contrary to the values of transparency, consistency and integrity embodied in my department’s framework for consent in higher education institutions”.
Ms Ruane said she first came across NDAs in the community sector but in 2017 a group of academics in a university school drew her attention to their use a number of times for a single perpetrator, who had gone on to other universities “with a glowing reference”, because an NDA meant “nobody can share the real instances of what had happened”.
Following research she discovered that they are used in almost every sector to the point where people were not even questioning “the potential cover-up of a criminal activity”.
She said in one institution a woman was offered an NDA she did not sign “before she even managed to make an official complaint”.
Much of the research showed that “someone’s reputation or potential employability will be negatively impacted if they’re seen as somebody who pursues a complaint”.