Gagging clauses should have no place in British universities | Letters

As former lecturers at London Metropolitan University, and the former negotiators for the University and College Union there, we are not remotely surprised to see that our old institution makes greater use of compromise agreements in order to gag former staff than any other university (Universities under fire over ‘gag clauses’, 30 December). We are also not surprised, though nonetheless dismayed, to read the disingenuous nonsense trotted out by London Met’s management in order to justify their use of gagging orders, in which they conflate legality with morality. Their wish to silence former staff has absolutely nothing to do with access to private student data and everything to do with protecting the university’s reputation against potentially damaging disclosures from a large number of disgruntled former employees.

The reasons for staff unhappiness are not unique to London Met, and the Guardian has previously reported on the sector’s problems with issues such as bullying (16 December 2014), excessive workloads and the resulting mental health problems (8 May 2014). The level of disgruntlement is evidenced by the fact that London Met management makes a large number of payouts to staff – with attendant gagging clauses – as a way of avoiding embarrassing employment tribunal outcomes (as revealed by academicfoi.com).

The 2014-15 sickness absence data for London Met showed them to exceed the sector average for absence due to mental health reasons. Surveys at the university by both management and the University and College Union showed that the incidence of bullying was about twice the national average reported by the TUC. We ourselves campaigned at London Met against excessive workloads and the resultant staff stress, but our own redundancies in July were swiftly followed by the management’s abandonment of the agreed workload allocation model and a further increase in workloads for those who have so far managed to avoid redundancy. London Met also continues to be an enthusiastic user of zero-hours contracts.

We ourselves are only able to write this letter because we refused to sign a compromise agreement, which means of course that we have also suffered financially.
Dr David Hardman Chair of UCU London Region
Mark Campbell Chair of UCU London Region Higher Education Committee

• I would like to thank the Lib Dems for bringing to light the issue of “gagging clauses” in universities. I was an academic reader in an arts subject, and was made redundant in 2016 by a university near the bottom of the league tables, which is heading towards exclusively technical training and abandoning the critical and creative thinking that should be indispensable to higher education.

Because I signed a settlement agreement, I am unable to draw attention to these changes or to the incompetent and destructive management which has turned my course from one that led the way in the UK, to one that is now struggling and at risk.

Bad management, poor resourcing, cronyism and a mindless, target-driven culture – slavish adherence to the NSS figures, REF, TEF, employability and recruitment targets – may now be endemic in the university system. Academics are powerless to fight the university management from within, and gagging clauses are preventing them from speaking out when they leave.

I am sad that my skills, developed over 30 years, are being wasted through redundancy, as I will find it difficult to find another suitable job. How many other academics are in my situation? Academic cleansing is indeed doing irreparable harm to university, cultural and political life in this country.
Name and address supplied

• Your article outlines some of the ways in which universities attempt to silence academic staff who may have views not to their liking. I experienced a variant of this last summer when my contract was unexpectedly, and at short notice, not renewed at Durham University. I had been working with academics at the other four north-east universities and not surprisingly felt it incumbent on me to warn my colleagues that I might no longer be available to work with them. The pro-vice-chancellor at Durham then threatened that if I continued to talk to others outside Durham University about my situation, he would decline to recommend that I be given the title of visiting professor at Durham. I am now visiting professor at the University of Newcastle upon Tyne. It would be instructive to require universities to provide data on the numbers of academic staff gagged to protect the reputation of universities as bastions of “free speech”.
Gary Craig
York

• Universities are indeed using gagging clauses in compromise agreements much too freely, and they seem to be able to get away with it. Yet there are well-established points of principle discouraging this practice.

Recommendation 8 of the Second Report of the Committee on Standards in Public Life (then the Nolan Committee), published in 1997, said that in the case of universities: “Where it is absolutely necessary to include confidentiality clauses in service and severance contracts, they should expressly remind staff that legitimate concerns about malpractice may be raised with the appropriate authority … if this is done in the public interest.” This principle was soon to be embodied in the Public Interest Disclosure Act 1998.

The Higher Education Funding Council for England spelled out its own advice in a circular of 2003: “Institutions must not agree to confidentiality clauses within any severance agreements except where it is necessary to protect commercially sensitive information. Commercially sensitive information does not include information on the details of the severance package itself, nor generalized clauses whereby individuals undertake not to make statements that might damage the reputation of an institution. However, there may be exceptional cases not covered by commercial considerations, where it is in the public interest to include a confidentiality clause. In these circumstances the institution must consult with [the] HEFCE chief executive, in [his or her] capacity as Accounting Officer, before agreeing to such a clause.”

A 2009 HEFCE update notes that “there can be no absolute certainty that a confidentiality agreement would prove legally binding in the judgement of the Information Commissioner”. It also stresses that any confidentiality clause should “not prevent the wider public interest being served”, expressly referring to the Nolan Committee’s Second Report.

There is also the practical consideration that a university is hardly likely to take a former employee to court to recover a severance payment if a gagging clause is broken. The headlines would do its reputation no good.
Professor GR Evans
Improving Dispute Resolution Advisory Service

• In your report about the number of university staff required to sign “gagging clauses” when they retire or resign, a Department for Education official is quoted as saying that these are a matter for “universities as businesses”. When exactly did Britain’s universities cease to be public institutions devoted to the pursuit of learning and scholarship?
Pete Dorey
Bath, Somerset

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