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The Church and NDAs: when silence is enforced

by
03 September 2021

Madeleine Davies investigates the use of confidentiality agreements by church bodies

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THE Archbishop of Canterbury was asked in April about the use of non-disclosure agreements (NDAs). The night before, the BBC’s Panorama programme had featured an interview with Dr Elizabeth Henry, then the Church’s National Adviser for Minority-Ethnic Anglican Concerns (News 20 April).

She described how a man had filed a grievance with his HR department after being sent a racist image. A decision had been made that the image was not racist, and he left with a “very small compensation”, having been “forced to sign a non-disclosure agreement”.

“I have said many times that I am totally against NDAs,” the Archbishop told Times Radio. “NDAs are unacceptable. I am just horrified by that, and horrified by the fact of racism.”

He and the Archbishop of York had written to “senior people in the administration of the Church, both together, saying ‘no NDAS’. We reinforced that. We’ve been saying it for a long time. I’m very frustrated by it.”

The comments were welcome news to Ben Nicholson, one of the founders of NDAfree. He signed an NDA as part of a settlement agreement with Tearfund in 2018, but later lobbied the charity to be released from it. The charity agreed to this in April, although he is still subject to certain restrictions.

He has since launched, with others subject to NDAs, the #NDAfree campaign, which encourages churches and other organisations to sign its pledge “to never request another party to submit to an NDA . . . [or] use confidentiality agreements in settlements”.

“I was delighted to hear a clear and unequivocal position from the Archbishop,” Mr Nicholson said last week, “but disappointed that it was reactive following exposure by Panorama, with no indication of meaningful follow-through. I believe he was genuinely angry that NDAs continue to be used in the Church of England — although it is of no surprise, since efforts to discuss them at General Synod have been thwarted.”

He would like to see the Archbishop encourage all Anglican churches sign up to the #NDAfree pledge, which would be a “show of support to survivors, and demonstrate a genuine commitment to tackling abuse in the churches where he has influence”.

The pledge also includes a promise to follow policies and due processes — including protection of whistleblowers — and to “always investigate wrongdoing, even where a settlement agreement is reached”. Signatories pledge not to use “non-disparagement clauses” with employees or volunteers.

 

NDAs have been used in employment contracts for decades, with the aim of preventing employees’ sharing information with third parties. They may also be included in settlement agreements in which an employee and employer agree to resolve a dispute and not proceed to a tribunal, in exchange for a financial arrangement.

In recent years, they have been the subject of increasing attention in the light of the #MeToo movement. In 2019, the parliamentary Women and Equalities Committee published the report of an inquiry, The Use of Non-disclosure Agreements in Discrimination Cases, which warned that “allegations of unlawful discrimination and harassment in the workplace are routinely covered up by employers with legally drafted non-disclosure agreements. . .

“The difficulties of pursuing a case at employment tribunal and the substantial imbalance of power between employers and employees mean that employees can feel they have little choice but to reach a settlement that prohibits them speaking out.”

Guidance from the CHS Alliance, a coalition of humanitarian and development organisations, advises that NDAs have “a legitimate reason for existing, protecting the confidentiality of the employees as much as the alleged perpetrator”. It gives several examples of instances in which confidentiality offers protection, including the handling of complaints about sexual exploitation and abuse “where assurances of confidentiality are essential to prevent further harm from occurring”.

But it also outlines the improper use of NDAs: they must not be used “to prevent whistleblowing, reporting of discrimination or harassment, or to cover up inappropriate behaviour or misconduct, particularly if there is a risk of repetition of such behaviour”.

When it comes to NDAs in settlement agreements, typically involving a payment to an employee, the line is: “It’s arguable if this use of donated financial resources is reasonable.” Using NDAs in this way “prevents organisations from resolving underlying and systemic issues and implementing the measures needed to tackle them”, the Alliance suggests. Its advice is that NDAs should not be included as standard in contracts.

The #NDAfree campaign acknowledges that NDAs have “a legitimate purpose in protecting intellectual property, and occasionally personal data”, but argues that the need for them in churches and Christian organisations is “extremely rare. If your church has a genuine need to protect intellectual property or personal data, this is exempt from the #NDAfree pledge.”

Its FAQ section suggests that relying on an NDA to protect confidential information about vulnerable people is “an admission of failure in earlier processes such as recruitment, supervision, protection of confidential information, ongoing professional training and adherence to policies and procedures. Within your church/organisation, there is a responsibility to ensure that only appropriately trained and trustworthy staff have access to confidential information about vulnerable people.”

Churches and other organisations relying on legal instruments to prevent employees’ and ex-employees’ disclosing confidential information should “ask themselves what is the role of values, trust and relationships”, it suggests.

In June, Tearfund issued an updated statement, promising that it would no longer use NDAs in settlement agreements, and offering to lift them from anyone subject to one “should they wish us to”. It continued: “We recognise that in some cases employees may themselves wish to have a confidentiality clause in a settlement agreement, and in such cases we may consider using one.

“In very exceptional circumstances, some information may need to remain confidential in order to protect the safety, privacy and well-being of other individuals who are vulnerable and to whom we owe a duty of care.”

The statement said that Tearfund had “very rarely used settlement agreements”, but that when they had been used it had been “to allow parties to resolve disagreements and move on after a relationship has irretrievably broken down, or where it has been necessary for employment law purposes”.

Mr Nicholson welcomes the statement “as it gives me hope that change is possible”, but notes that “it has taken three years and a lot of work to get here.”

“Sadly, it’s not enough to just change the policy,” he adds. “There is a need to take responsibility for the damage done by NDAs, and to independently investigate and deal with what NDAs have concealed.”

 

THE Church Times has spoken to three people who have signed NDAs as part of settlement agreements with C of E dioceses and a Christian charity.


‘If you think this is a good process, why are you ashamed of people knowing about it?’

THE Revd X signed a confidentiality clause when they accepted a settlement after being dispossessed as a parish priest as part of a pastoral reorganisation. Their comments come as the Church Commissioners await responses to a review of the Mission and Pastoral Measure 2011.

X describes the process as “appalling from beginning to end”: a rushed consultation was held with little notice and poor communication from the diocese. Many of the parishioners had no post-16 education, and struggled to understand the legal and ecclesiological language used in the consultation documents.

The hearing held by the Church Commissioners in London required an initial outlay of money for an expensive train ticket, and the process itself was “unnecessarily scary — like appearing at the Old Bailey”, X said. “It just feels like it is not an accessible process for anyone from a working-class community.”

Looking back, X feels naïve for having supported the diocese’s plans. None of the mission suggestions put forward by X and the parishioners during the consultation have materialised, despite positive noises from the diocese at the time: “The moment I walked out of the door, they just shelved all of that,” X said.

Although told that they could apply for the post-reorganisation position, X was presented with a job description written that day, which the Archdeacon admitted he had not read. X believes that the successful candidate had long been identified: the leader of a large city-centre resource church near by.

The confidentiality clause permits X to speak to close family members, which precluded them from seeking support from a spiritual director or friend: “It kind of closes down lots of avenues of support, while you’re going through the most hideous thing you’ve ever been through,” X said. X also asks: “If you think this is a good process, why are you ashamed of people knowing about it? If you are doing a process well, then, however painful it may be, people don’t just get angry and frustrated on social media.”

In a recent conversation, X’s fears about the parish were deepened: a man who had been an “absolute stalwart” had been sidelined in the new configuration, telling X: “I live in a council house; why would anyone listen to me?”

 

‘It is the anthesis to the gospel, which is all about reconciliation’

ELLIE started working as an administrative assistant at a Christian charity in September 2017. A couple of weeks after starting her part time Master’s at Wycliffe Hall, in October 2018, she reports that she was raped by a colleague, 17 years her senior, at the charity where she worked.

In the first instance, she went to the executive director and his wife in extreme distress. Despite showing her bruises and describing saying “no” to the colleague’s attempts to have penetrative sex, she initially said that the incident was consensual.

She now knows that self-blame is a normal initial response from a woman who has been raped. After a visit to a GP, who recommended referral to the Sexual Assault and Rape Crisis Centre, she went to stay with friends, and reported what had happened to the police six days after the alleged rape.

Ellie was then contacted by the executive director, telling her not to come into work and that she was suspended pending disciplinary action. Among the six reasons listed was “behaviour causing potential reputational damage to the institution”. Even though Ellie gave the director a copy of her report to the police, the organisation continued to pursue dismissal.

At this point, Ellie employed a lawyer, who described the charity’s treatment of her as the worst handling of sexual assault she had ever encountered. In January 2019, Ellie returned to work at the charity, having signed a contract that included an NDA clause, preventing her disclosing anything about the way in which the organisation had handled her disclosure, including their initial decision to dismiss her.

She signed it on Christmas Eve, in need of her salary and in the hope of being able to move on. “I didn’t know what an NDA was,” she recalls. “I was very naïve, but most people don’t know about these things until they know about them. I thought: ‘This is them showing that they now believe me, and they are sorry,’ but the very opposite turned out to be true.”

Having read about low conviction rates for rape, Ellie decided to contact the police and drop her complaint. But, the next month, she discovered through her administrative work that the senior colleague was still supervising students through the charity. This prompted her to resign, reopen her case with the police, and report the charity to the Charity Commission. She also opened an employment-tribunal claim.

The Charity Commission ruled that the charity did not have appropriate safeguarding structures in place, and had failed to report a serious incident to them. Ellie felt unable to pursue the tribunal claim to court, finding the wait for a court date “excruciating”. The charity gave her a relatively small settlement, which covered her legal fees and losses incurred by having to pause her Master’s.

Ellie is currently subject to two contracts which include NDA clauses: both the original, signed on Christmas Eve, and another, put in place at the time of her settlement, despite her lawyer’s protest that Ellie found an NDA clause highly inappropriate and unchristian. This second NDA was amended after she refused to sign wording preventing her from speaking negatively about the senior colleague whom she reported had raped her.

Today, she describes the way in which the charity handled her disclosures — the attempt to dismiss her, and their use of NDAs preventing further dialogue — as worse than the abuse itself. “The NDAs mean we have no capacity to move forward and resolve the pain that I have been caused, as we are not even allowed to talk about it,” she says.

“To me, it is the anthesis to the gospel, which is all about reconciliation. It is traumatising. Having honest conversations, listening to one another, all those things that are healthy and right and good — they are closing the door to all those things. That has left me in a lot of pain, more pain than the sexual abuse.”

Today, Ellie is now working in a different Christian charity. She hopes that, by sharing her story, Christian organisations will become aware of the distress caused by the misuse of NDAs.

 

‘NDAs in the diocese have been used in order to silence clergy’

THE Revd B has a BAME background. He served as priest-in-charge of an Evangelical church in the Province of Canterbury for five years. The church had a complex recent history, and, looking back, he believes that he inherited “a lot of pastoral concerns”.

Four years into his time there, the archdeacon invited him to a meeting. B then learned, “out of the blue”, that he was to be subject to a capability procedure. The code of practice for this, set out under the Ecclesiastical Offices (Terms of Service) Measure 2009, states that “the primary purpose of the procedure is to find a way of helping the office holder to improve unsatisfactory performance.”

It is expected, the code states, that “most performance-related matters will be identified and addressed informally, without engaging this procedure”.

During this first meeting, B told the archdeacon about some of the pastoral issues in the church, and that he was aware of “racial tensions”, but felt that the archdeacon took little notice of this. The archdeacon sought to test whether the problem lay in a lack of emotional intelligence.

On the advice of friends, B engaged a lawyer. The lawyer’s advice was that an employer intending to conduct a capability procedure should first make a commitment to supporting the employee to enhance their capability. The C of E’s own code of practice states that such support can include coaching, counselling, and mediation.

Neither B nor his lawyer, who said that he had identified several flaws in the archdeacon’s handling of the matter, felt that the diocese had offered this assurance. Although B complied with the archdeacon’s request, the diocese never allowed him to see the results. The bishop of the diocese appointed an HR employee from another diocese to take on the case.

Over the course of the following year, B felt that his situation had become untenable. He was never subject to any complaints under the Clergy Discipline Measure, nor was a CDM ever mentioned. He took sick leave while suffering from depression, and the bishop refused to meet him for pastoral support. On his lawyer’s insistence, the diocese eventually appointed a retired priest to provide pastoral support. He felt that he had lost the support of the parish.

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The diocese offered him a financial settlement to leave, including a non-disclosure agreement, which he signed. His lawyer’s advice was that “the amount of pain and hurt and devastation that any employee takes against an employer is just not worth it. Take the money, sign, and go.”

B recalls: “Even afterwards, from my point of view, the diocese was pretty brutal. When I resigned, I wrote to the bishop to say: ‘Now that the process is over, I am very happy to come and see you to answer any questions that the diocese might have about what went wrong.’ But he said ‘no’ very firmly on a number of occasions. It was all quite messy and horrible and nasty, really.” The bishop refused to give B permission to officiate in the diocese after his resignation, but gave no reasons.

“I am open to a properly run capability procedure, but I am not open to something where there is no support given according to employment law.” He also feels that none of the incidents of racial prejudice he encountered were acknowledged.

B agrees with the Archbishop of Canterbury’s comments about the use of NDAs. “It seems to me that NDAs in the diocese have been used in order to silence clergy,” he says. “There is imbalance of power. The diocese will always win — it has money, influence, position, status. I am only one individual.

“The whole use and manipulation of NDAs is quite abusive and wrong and unchristian. . . For a Christian organisation to use them so that they are not embarrassed in public seems to be contrary to the principles of truth, honesty, and openness.”

He has written to the diocese to ask it to agree not to use NDAs in future.

 

THIS month, Christine Hewitt-Dyer, director of people for the National Church Institutions, said: “Confidentiality clauses in agreements are for use only in exceptional circumstances, and are made in line with ACAS guidance on where open processes may not have reached resolution.

“Any agreements entered into by dioceses, cathedrals, or parishes are a matter for the individual, independent organisation, and their employees/office-holders. The NCI Clergy HR team communicates regularly with HR colleagues in the dioceses, and shares NCI HR practice via meetings and newsletters.”

Mr Nicholson, who continues to work with people who have been subject to NDAs, helping them to disclose their stories safely, describes NDAs as “the opposite of our call to be witnesses to the light — the light that brings life.

“NDAs heap institutional abuse on top of already traumatised people, and rely on threats and intimidation, leaving people fearful. By enforcing silence, they actively undermine personal healing and make reconciliation impossible. Meanwhile, they protect perpetrators, leaving them free to continue abusing others.”

ndafree.org

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20 September 2021
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Author Jarel Robinson-Brown in conversation with Rev. Winnie Varghese.

25 September 2021
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With Stephen Cottrell, Peter Stanford, Lucy Winkett, and Rowan Williams.

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