December 31, 2016

Universities under fire for gagging former employees

Lib Dems say more than 3,500 higher education staff have signed compromise agreements in the past five years.

London Metropolitan University has signed settlement agreements with 894 staff since 2011/12.

Universities have been accused by the Lib Dems of stifling free speech through the use of “gagging clauses”, after the party’s research found more than 3,500 former staff members in higher education have signed “compromise agreements” in the past five years.

Freedom of information requests show that 48 universities have paid out £146m in severance cash to former staff members over the past five years and 3,722 people were asked to sign compromise or settlement agreements, which usually contain confidentiality clauses.

The highest number of such agreements was signed by London Metropolitan University, with 894 agreed since 2011/12. Others with high figures over the past five years include the University of Exeter with 346, Cambridge University with 237, and the University of East London with 184, out of the 48 universities that replied to the Lib Dem requests under transparency laws.

Responding to the figures, Tim Farron, the Lib Dem leader, said the use of confidentiality clauses in compromise agreements by universities was not appropriate.

“Universities are supposed to be bastions of free speech and forthright opinions, yet our research has shown that confidentiality clauses may have been used not only to avoid dirty laundry being aired in public but now are just common practice in higher education,” he said.

“This is simply outrageous. These gagging orders have a deterrent effect, employers seem to think that employees will just sign away the right to whistleblow.

“The cold wind of gagging staff and stifled debate, much in the public interest, is going through the halls of our bastions of enlightenment and tolerance. This must end, these practices must be stopped.”

Their use was defended by a number of the universities. A spokesman for London Metropolitan University said it was “common practice in higher education, and other sectors, to include compromise agreements in any voluntary redundancy settlements made”.

“Compromise agreements are recognised by statute, and the standard form of severance agreement from Acas includes an optional non-disclosure and confidentiality clause,” he said. “It is important to point out that such clauses do not prevent the individual from making a protected disclosure under whistleblowing legislation.

“A confidentiality and non-disclosure agreement is a standard element of voluntary severance agreements principally because almost all university staff will have had access to personal and private student data which universities have an obligation to protect from disclosure.

“Universities often have to make redundancies for a range of reasons, from the need to adjust to changing student numbers to the closure of courses with low demand or which do not meet the high standards of quality we expect.”

A University of Exeter spokesman said: “During the past five years the University of Exeter’s professional – non academic – services have been restructured to make sure they meet our future needs.

“Settlement agreements were used in these cases when staff left on a voluntary basis with enhanced terms. This is standard practice as part of employment law and protects personal information.

“The University of Exeter is a friendly and supportive workplace, where openness is actively encouraged. There are many mechanisms for staff to raise concerns confidentially.”

A spokeswoman for Cambridge University said: “The University of Cambridge takes pride in its ability to recruit, retain and support its staff. Like any large employer, our people leave the university for a variety of reasons and we are committed to fair and proper processes that respect those individuals.”

Dusty Amroliwala, deputy vice-chancellor at the University of East London, said some staff had been offered voluntary severance as part of restructuring programmes.

“Such voluntary programmes represent good employment practice and are often agreed in advance with the trade union side,” he said. “Compromise agreements provide a legally safe means of bringing to a formal end the relationship between a member of staff and the employer. They protect the interests of both parties to the agreement and are entered into on a voluntary basis.

“Compromise agreements are not drafted to prevent discussion about general failings that might impact on students. Such failings, were they to exist, would normally be in the public domain before the departure of any particular member.

“The university does not adopt clauses in such agreements to prevent the discovery of any specific failing. Rather, it does so to avoid any ad hominem comment. The university is a strong supporter of the practice of free speech. It also recognises the importance of ensuring that appropriate safeguards are in place to protect both parties to a confidential agreement.”

The use of compromise agreements in the higher education sector appears to be much higher than in the NHS. The Lib Dems also collected figures for compromise agreements in the health service, which showed they have been used 439 times over the past five years by 44 trusts which paid out £73m in severance payments.

The highest users out of the trusts surveyed showed around 10 per year being agreed with former staff members.

The Department for Education said it was a matter for the employment practices of universities as businesses, while the Department for Health said it has written to all trusts to remind them of their legal obligations.

“We want the NHS to be the safest and most transparent healthcare system in the world,” a Department of Health spokesman said. “A departing employee should never be prevented from speaking out in the public interest where they have genuine concerns – but it’s wrong to say settlement agreements undermine that. We have written to all trusts to remind them of their legal obligations.”


1 comment:

Howard Fredrics said...

As a matter of law, most gagging clauses are unenforceable. Universities would have to prove specific damages linked to the breach of the gagging clause. Simply airing dirty laundry that might cause embarrassment but not quantifiable damage to the university is not subject to clawback of settlement payments.