HIGHER EDUCATION AND FREEDOM OF INFORMATION
Some Universities may be using non-disclosure agreements to hide poor performance and maladministration
5528 staff signed non-disclosure agreements in the last three years
It does seem than some institutions that survive wholly or in part because of taxpayers money still haven’t quite got the message that if you are funded from the public purse you have to be both accountable and transparent in your dealings . The Freedom of Information Act can help in this respect but it is extraordinary how many grant funded organisations are not subject to the FOIA and it has its limitations.
Recent revelations from the NHS concerning how whistleblowers are muzzled using public funds and the dreaded Non-Disclosure Agreement is deeply worrying not least because it has grave consequences for patient safety and best practice . The world of education is not immune from these shenanigans either. According to AcademicFOI.com the University of Southampton along with University College Falmouth are the only two institutions not responding to FOI requests. So that on the face of it sounds good. But one needs to drill down a bit deeper . Universities are according to a AcademicFOI.com survey entering with increasing frequency into non-disclosure agreements. 5528 University staff signed non-disclosure agreements in the last three years. 366 of these resulted from employment tribunal claims that were settled prior to hearings, at a total cost to the taxpayer of £11.5m . According to a correspondent in the Independent (4 August) ‘ the use of these agreements is frequently linked to redundancy, which in many universities are now being pushed through by managerial decision with little or no real consultation.’ The correspondent continues ‘In effect, tax-payers’ money is being diverted by the managements of universities to silence criticism of often arbitrary decisions, and fend off scrutiny of a frequently lamentable performance. Academics are told they will not get the redundancy payments to which they are entitled if they say anything to criticise the administrations which have pushed them out.’
A non disclosure agreement (NDA) is any agreement that restricts the right of an individual or a university to discuss a matter in public. Usually in employment disputes they are part of a Compromise Agreement. The exact wordings vary and are kept confidential but typically the member of staff signs their agreement not to discuss their settlement with anyone apart from immediate family or professional advisers. They also agree not to publicly criticise the university or discuss the dispute that led to the agreement being signed. The main justification for using NDAs in resolving employment disputes is that both individuals and universities can put disputes behind them and move on with their reputations intact. But they can also act as means of ensuring that important and possibly embarrassing facts concerning the academic, research or pastoral functions of a university are withheld from the public. This affects their accountability.
Academic FOI.com says “ There is no scrutiny as to whether a university with 20 NDAs resulting from employment disputes is “moving on” from 20 different minor disputes or “moving on“ from one major, and possibly unresolved, problem. There is an obvious conflict between widespread use of NDAs and legitimate whistle blowing of genuine problems within universities. Within research the use of NDAs is understandable where confidential commercial research is being undertaken. The difficulty arises if staff working on a project discover ethical or other problems after they have signed NDAs. The extensive use of NDAs in restructuring programmes prevents the affected staff from engaging in public debate about the wisdom or otherwise of that restructure. The use of NDAs for staff combined with strict rules on unauthorised media interviews and vague rules on “bringing the university into disrepute” creates a system which is not at all transparent.”
Just thirteen universities over the last three years signed no NDA agreements. Of the top five who did sign NDA settlements – Manchester signed 26 . (it also topped the Tribunal claims on 40) Birmingham 20 , Bristol 17, UCL 15 and Manchester Met 11. In terms of settlement costs Liverpool John Moores tops the League table on £ 362,108 and Manchester comes second on £ 247,881
Two things stand out. First there is a trend developing to cut deals with employees in the public sector, including with whistleblowers, behind closed doors at considerable expense to the taxpayer , which, in some instances at least, serve to withhold important information on the respective institution from the public. Second the standards of accountability and transparency across the HE sector are simply not good enough. Part of the new funding deal for the sector which will be forged over the next couple of years must include a big quid pro quo. In return for more funds there must be greater openness, transparency and accountability across the sector in admissions, performance, degree of student satisfaction, the value added , the employability of their graduates and the way they manage public funds. (oh, almost forgot, and how much they pay their leading staff)