New law prevents the use of gagging orders by Universities

Wednesday, December 21, 2022

In 2020, a BBC investigation showed that UK universities had used non-disclosure agreements (NDAs) on 300 occasions between 2016 and 2020 to prevent their students from going public with complaints of sexual assault, harassment, bullying or teaching issues after they had taken legal action.

An NDA is a legal contract that stops a person from sharing specific information with others. Traditionally these were used in business contracts to protect trade secrets, but they have also been used by universities and in employment settings to prevent those who have made allegations of abuse from speaking about their experiences and the existence of legal proceedings.

Once someone has entered into an NDA, if they then were to speak about their experiences, they could become legally liable for breaking the agreement and so could be sued themselves.

Many of the students who entered into NDAs as part of a settlement agreement, in particular those without legal representation, will not have wanted to do so but because of the imbalance of power between them and the lawyers for the university, they may have felt they had no real choice but to agree in order to conclude legal action.

The psychological effects of being pressured into signing an NDA should not be underestimated. Speaking out and sharing experiences is a key part of most people’s psychological healing. Although it can be legally difficult to enforce an NDA, it can still lead to devastating psychological harm if, as a result of signing an NDA, a student feels unable to talk to their friends or family about something significant that has happened to them or worries that they are opening themselves up to being sued for having done so. 

Universities have chosen to use NDAs because it gives them control over the release of potentially embarrassing information that could be harmful to their “brand” – but the use of NDAs means that it is impossible to know whether universities’ complaint processes are being used fairly or applied equally. Instead of transparency and honesty, the handling of grievances can become completely opaque.

Speaking from my experience as a solicitor who acts on behalf of survivors of abuse, one clear lesson that every organisation should have learned from past scandals, is that it is absolutely key that there is openness, honesty and transparency when dealing with complaints of abusive behaviour.

Individuals need to feel free and supported to share their experiences. When this doesn’t happen, and when those responsible for abuse are not held publically accountable but are instead allowed to continue in their roles, there is a clear risk that abuse will continue, worsen, and be covered up by those for whom it is inconvenient to have these issues aired.

Off the back of public outcry and the hard work of a number of campaigning groups, some universities have already pledged to stop using NDAs. You can see for yourselves the list of which universities have (and by extension which have not) signed up here.  

However, there is some good news as parliament has moved to ban universities using NDAs to cover up misconduct.

As part of the Higher Education (Freedom of Speech) Bill making its way through the House of Lords, the government accepted an amendment which would mean that, if enacted, universities will have an obligation to ensure that they do not enter into NDAs with their staff, their members, their students or visiting speakers in relation to a complaint or allegation of sexual abuse, misconduct, bullying or harassment.

The Bill will also mean that if any university does try to enter into an NDA in relation to misconduct, then that agreement will be legally unenforceable.

Whilst this is great news, it is not yet the law. The Higher Education (Freedom of Speech) Bill now needs to go back to the House of Commons for consideration of this amendment. However, whatever the ultimate outcome, both the moral and legal guidance to universities is clear: they should not be using NDAs to cover up misconduct.

What to do if you have suffered abuse at university? 

Talk to someone

Firstly, talk to someone – a friend, family member, your GP or other medical professional, student support service, university staff member or one of the organisations that exists to support you through these experiences (such as Nightline, Rape Crisis, Victim Support, or the National Bullying Helpline). Sometimes this may feel like the hardest step - but know that there are people who can support, advise, and assist you in dealing with your experience and taking the next step.

Inform the police

If you have experienced an assault or harassment, you should inform the police as you are the victim of a crime. By telling the police you may play a part in bringing your abuser to justice, and helping to stop or prevent the abuse of others. You can do this by calling 111, the non-emergency police number and asking to speak to a specialist police officer. You can ask to speak to a male or female police officer, whichever makes you more comfortable.

You don’t have to do this on your own. You can ask someone else to speak to the police for you in the beginning, or ask them to make the appointment on your behalf. You can also take someone you trust to support you if you go in person to speak to the police. This may be a family member, friend, or partner.

Keep in mind that you don’t have to deal with any of this all in one go. You can make an initial report to the police with very brief information and your contact details, and follow up later.

Tell the university

Inform the university of your experience. Follow this up by making a formal record of your experience and/or complaint in writing. By following up in writing you can avoid any potential confusion about was told what on what date.

In addition, every university will have its own student support services, although these will differ somewhat between institutions. Your university may offer confidential advice and counselling services, pastoral/student support officers and if you’re living in halls, there may be a residential support team who you can contact. There may also be peer support networks run by students for students.

Seek legal advice about your rights

Finally, when you feel able to do so, speak to a specialist firm of solicitors who can give you advise about your rights to claim compensation. Bear in mind that there are time limits involved for civil claims and employment tribunals, so seek legal advice as soon as you feel able to do so.


Joseph Carr, an Associate in the Abuse team of law firm Bolt Burdon Kemp