Why we need to ban NDAs

Sometimes I think our profession is much like the British weather, we have an obsession in talking about its shortcomings, but yet nothing can be done to change it. My frustration is compounded in the rare moments where we genuinely have an opportunity to act for the betterment of the world of work, but instead choose to hide behind indecision and equivocation. There is no clearer example of this than the ongoing debate on the use of NDAs (non-disclosure agreements) in settlement agreements.

The broad reaction from the legal and HR professions (and their governing bodies) is weak and depressingly similar, “it depends on how they’re used”. Ultimately suggesting that the clauses themselves aren’t bad, it’s just the bad people (their members) who use them. This is akin to asking the National Rifle Association to opine on gun control. Because every NDA included in a settlement agreement will have had a lawyer draft it and another read it on behalf of the employee. 

Let’s just pause there for a second and let this sink in. In every case where a settlement agreement has been used with an NDA to silence a victim of sexual harassment, racial discrimination or bullying, the overwhelming likelihood is that a legal professional has not only acted for the perpetrator, but for the victim as well.  Let’s not let ourselves off the hook here either, the `HR profession is in many, if not most, cases entirely complicit too – they just don’t exist in all organisations. So is it a surprise that we argue for their continued usage?

In the same way that gun control is the only sensible way to ensure that people are protected  from the harm that these weapons can cause, the only way to ensure that NDAs are not incorrectly applied is to ban their use in settlement agreements. When I make this point the familiar riposte is to talk about business interests and confidentiality and make a bold statement that these are in the interests of the employee. This is intentional obfuscation, so let’s take some time to put these myths to bed. 

You can have a confidentiality clause without containing an NDA, in fact the Law Society describes it as follows, “Confidentiality clauses, which may include terms commonly referred to as non-disclosure agreements, within settlement agreements are used to stop commercial information from being shared inappropriately and to avoid reputational damage.” It is this last point that is central to their use, where clauses are inserted to prevent the employee from talking about the incident that led to the use of the agreement or indeed to disclose the existence of the agreement itself. No-one is talking about banning confidentiality clauses that reaffirm those that already exist in a contract of employment, just the use of NDAs to silence.

Now the idea that this is in some way in the interest of the employee. I’ve asked on numerous occasions for someone to give me an example where this is solely the case, where there is no interest in reciprocity from the organisation. Unsurprisingly, I’m still waiting to hear of one.  And of course the logic of this assertion is flawed in itself, because if non-disclosure was generally in the interest the employee, then they wouldn’t be looking to disclose it in the first place. The fact is that this argument is generally uses as a sinister arm twist, “it will be in your best interest if we say nothing about this matter…so you better not either…”.

NDAs are about power, they are about control, they are clauses that are used to silence those that are generally victims of organisations that have gone wrong. There may be the very odd case where they could legitimately be argued for, but their punitive use far outweighs any benefit. Every case of sexual harassment, discrimination, bullying, intimidation and unfair treatment that leads to the use of such a clause is a terrible indictment on the HR profession and our colleagues in the legal profession too. There is only one safe answer and that is an outright ban. Until that comes about, until our professional bodies find their backbones, I ask you to take the lead and to change your practice now.

Make work better. For everyone.

I looked with disgust at a news story last week that showed photos of a very successful UK business man, effectively pawing a young female employee. I’ve written before about power and the interface with inappropriate behaviour and actions. We cannot turn a blind eye and continue to suggest that these actions are a strange aberration.

If we want “good work” then how about starting with facing up to harassment and discrimination? How about facing into the fact that too many people go into work every day with a sense of dread? How about being honest that we have people in business, in society that are taken advantage of others, and we know?

If HR wants to stand for something, how about standing for workplaces free of inappropriate behaviour, free of harassment and free of intimidation. How about standing for something better.

That doesn’t mean that bad things won’t happen. We cannot be all seeing, all knowing, omnipotent superheroes. But there is a long and significant continuum that reaches from deity, to turning a blind eye. And maybe we should be a little bit more focussed on shifting our performance along that line.

As I’ve said before, when these actions take place, somebody knows. And worse than that, often numerous people know.  And even worse, often HR departments know. And if we know and we fail to act, we betray our organisations and our profession.

What if we came together and said. “no more”? That as a profession we would no longer work for, or in, organisations that failed to tackle underlying issues with harassment or constant inappropriate behaviour. That we would raise the issues internally and if they weren’t properly handled, externally. That we would stand for something bigger and better than just doing our jobs.

What if we were really about, trying to make work better for everyone?

Is trust a term and condition?

I was struck by the news this morning of the deal between courier firm Hermes and the GMB Union on employment status. The latest in a line of challenges to self employment and the so called gig economy.

Employees will now be able to opt to have 28 days paid holiday and a guaranteed hourly rate above the minimum wage, in return they will have to accept to follow the delivery route set out by the company rather than choosing the order in which they deliver their parcels.

The logic presented by the company is that if they’re going to guarantee an hourly rate then they need to ensure that couriers take the most efficient route. Which on first reading makes sense, but also raises an underlying question.

Is the suggestion that people are less likely to seek the most productive route if they are paid by the hour, that they’re more likely to (for want of a better word) slack? Or is it that the company don’t care about lack of productivity if they’re not paying for it, that’s the courier’s (and subsequently the customer’s) problem?

Whichever way you look at it, it points to an interesting interpretation of the contract of employment – that “terms” trump the psychological aspects of the employment relationship between worker and employer. It suggests issues of trust.

My guess is that the company is trying to distinguish between the self employed and employed by taking away a freedom that their current couriers appreciate and enjoy. If you want the good stuff (holidays and guaranteed wage rates) then there’s a cost to you too – the deal is on the back of losing an earlier employment tribunal.

But regardless of the specifics of the case it raises questions for us all. What assumptions do we make about the behaviours of people that work for us? And do those assumptions help or hinder what we are collectively trying to achieve?

Deal or No Deal?

When I started work, I don’t remember thinking I was due anything other than a pay cheque at the end of the month. I’d received my contract and terms and conditions and I accepted the deal  – the amount of holiday, the level of pension and the protection for sickness. That is about all there was in those days.

I figured that if I worked hard, put in the hours, managed to show a bit of intelligence and initiative that it would help me. Not to get a promotion, but to get experience and ultimately a good reference. Because when I started the job, my director had been very clear – I wasn’t going to stay.

It wasn’t that he was a hire and fire them character – far from it – but he had taken a policy to hire young, eager, recently qualified professionals and to give them a chance in the world of work. In return he realised that he got good quality people, but one’s that would want to move on pretty quickly – and he was ok with that. That was the deal.

Throughout my career, I’ve heard reference to “entitlement” more and more. It really wasn’t a term I was familiar with back in the mid 90s. And whilst I’ve worked with some people who truly believe they were the most entitled on the planet, “we’re unicorns, Neil, that’s what you need to do if you want to hire unicorns”, I’ve met more who’ve been disappointed that a promise they were led to believe, hasn’t materialised.

The thing about a deal is that it has to work for both sides, and yet as organisations too often we want to pretend we have something greater than the reality, in the belief that what we actually have wouldn’t be appetising. The implication of this is we don’t believe that job applicants and employees are capable of making an assessment based on facts and acting in accordance with their best judgment.

So instead we talk about nebulous concepts such as career enhancement, progression, development opportunities and stretch, which are easily misinterpreted and can be unintentionally disingenuous. Frustrations normally kick in at about two years into the employee journey, when people start to realise that their interpretation of the phrase wasn’t the same as the organisation’s.

There’s nothing wrong about a straightforward deal at work, in fact I’d argue there is something pretty refreshing. “If you come here, you’ll be working with good people to do your job, we will look after your health, safety and wellbeing, we will pay you x and give you y on top. You’ll learn and hopefully enjoy yourself and in the future, who knows, you might find something else here you like or you might choose to move on. And we understand and respect that”.

Deal, or no deal?