NDA – no longer the protective shield it used to be?

NDA With the announcement in parliament that Sir Philip Green is the latest businessman who has hidden behind NDA’s to protect himself and his reputation in respect of discrimination and/or harassment, let’s take a couple of minutes to talk about NDA’s.

Nearly 30 years ago, I signed an NDA after suing a company that, in my view, made my life so difficult after having a baby that I resigned. But for over 20 years I have myself run an HR business and of course our clients use NDA’s in order to protect their business interests and inevitably the personal interests of the managers and principles. I’ve therefore seen it from both sides!

An NDA is usually put in place in the form of a confidentiality clause contained within a Settlement Agreement. These used to be called Compromise Agreements. A key part of the Settlement Agreement is that it reflects what has been ‘settled’ between the parties – usually this is a sum of money in return for agreement not to disclose what has taken place and to not pursue the claim to a court of law.

Payment of money in my experience does not always reflect culpability on the part of the business. Sometimes it is just sensible to ‘pay someone off’ than deal with their grievances and claims. And whilst there are many valid claims from employees (or ex employees) who are honest and reflecting the situation as it did happen, it has also been my experience that there are many employees who get so stewed up in their own issues that the reality and proportion of what did or did not happen is lost in the conflict.

Hand on heart I can honestly say that by and large the use of Settlement Agreements is fair and sensible with both parties getting what they want (after a bit of compromise on both sides of course).

However, from time to time in an organisation it becomes clear that just one employee, manager or director is the cause of far too many complaints, grievances and in due course Settlement Agreements. Serial Offenders you might consider them who cost their businesses a lot of money in legal fees and settlements. And serial offenders are effectively being given the tennis equivalent of a ‘let’. This occurs if they are seen as too valuable to the organisation to lose (i.e. to be sacked). And this is where it gets dangerous. Others of course are sacked, disciplined or given training to re-educate after the first offense.

So what is the balance between ‘value’ to an organisation and ensuring the organisation sets professional standards and manages all its staff fairly?
The most important thing I learnt nearly 30 years ago when starting out in an HR career is very few things in life are black and white. In HR its all shades of grey. Simply because people are not perfect. We are all flawed and we all make mistakes.

However, what life and 20+ years of running an HR business have taught me is that if you turn a blind eye to a small misdemeanour today, in a few years you will be dealing with the fallout of something far more serious. And that if you have different standards at the top of an organisation to the bottom you are, quite frankly, running a shoddy outfit that deserves to be outed. It might have been allowed a few decades ago, or even one decade ago, but this sort of complacency at senior levels has got to be shaken as no one, absolutely no one, can afford to be complacent about the changing standards and expectations in today’s society and workplaces.

Protection for serial offenders through the use of NDA’ is no longer an option.

So, let’s see what other worms now start crawling out of the can given that this is the second occasion in recent times where the courts have not permitted disclosure, but then someone in parliament has used their parliamentary privilege to do what they view as ‘the right thing’. Lots to say on this subject but I’ll leave it to someone else to comment on whether our MP’s are undermining our justice system!

 

This is a personal blog written by Helen Jamieson. The views and opinions expressed in this blog are solely those of the author and do not necessarily reflect the opinions of Jaluch Ltd. The views and opinions posted in response to this blog are solely those of the contributor and do not necessarily represent those of Helen Jamieson or Jaluch Ltd. Jaluch Ltd is not responsible for the accuracy of the information within this blog.

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