Get support

The conviction of Harvey Weinstein in front of a New York Court has thrown the use of “non-disclosure agreements” back into view. The disgraced producer had used the legal tool to intimidate employees into silence and facilitate his predatory activities.

Speaking to the Sunday Times, former Weinstein employees have called for an outright ban on the use of NDAs. One woman, Laura Madden, who had accused Weinstein of sexual assault, went as far as to say of NDAs that “Covering up criminal behaviour is a crime in itself — you become an accessory to a crime.”

The charity and humanitarian sector has had its fair share of controversy over the past few years, a lot, regrettably, aggravated by accusations of cover-ups. In the last few weeks, for example, the Alzheimer’s Society in the UK has been criticised for its alleged use of NDAs for departing staff, with suggestions they have been used to silence staff accusations about bullying.

A UK parliamentary report published in 2019 suggested that widespread use of NDAs had led to a “cover-up culture” and that overuse of NDAs could mean that “Victims may be reluctant to report their own experience for fear that their allegations will not be taken seriously or investigated properly and that they will lose their job”.

But is it simply the case that all non-disclosure agreements are intrinsically bad?

Some working in volatile situations or on sensitive topics will say a contractual guarantee of confidentiality is critical to safe working practices, ensuring that staff can deliver vital services.

The International Committee of the Red Cross ‘s privilege of non-disclosure is well-established in both international and domestic law. Staff and others working for the ICRC are contractually bound to maintain the confidential nature of information gathered or acquired in the course of their work for the organisation both during their employment with the ICRC and after they leave.

In conflict zones, confidentially may mean the difference between life and death. We may not be able to achieve total transparency when people in our sector face a real and present danger just for doing their job.

Confidentiality agreements will often extend not just to staff but to regional and local contractors, giving the sector a legal standing should confidences be breached and projects compromised as a result.

Organisations holding confidential personal or medical data may also feel compelled to bind staff to non-disclosure during and even after their terms of employment.

Crucially, there can be very real reasons why victims themselves might want to keep their cases confidential. Fear of being retaliated against or ostracized by current or future employers can lead some to prefer to take a private settlement over possible public exposure and professional fallout.

If the use of all NDAs was banned, we could end up marginalizing rather than empowering the people we’re aiming to protect. While these agreements can prevent the public from knowing about predatory conduct, many victims of abuse or harassment may never have come forward if they knew the only option was full public disclosure of their experiences. What matters most is that women and men who experience sexual harassment feel free to seek justice, whether public or not.

So how should the humanitarian sector approach non-disclosure agreements? Clearly, the CHS Alliance would argue that organisations should aim for maximum possible transparency and accountability.

At the same time, we can understand that in some circumstances, a guarantee of confidentiality may be desirable or even essential in order for organisations to carry out their functions and deliver services to those who need them the most.

It’s a complex question, one that demands some serious thought. Organisations should have clear ideas about *why* they use NDAs rather than using them as standard in inappropriate situations.

This Spring, the CHS Alliance is opening a consultation with our members on the issue of the use of non-disclosure agreements in the sector. We want to build a complete picture of the incidents in which their use is seen as beneficial or even essential; and we also want to find out about the damage they may be doing to individuals or organisations.

We hope that on the basis of this evidence, we will be able to create some solid guidance for our members, the sector and the wider world. We suspect this is not a black-and-white debate, and we’re curious to know what you think the shades in between might be.

We want to hear from you. Send us your stories about the use of Non-Disclosure Agreements. Please contact Gozel Baltaeva at gbaltaeva@chsalliance.org in confidence.