Non-disclosure agreements in schools

Overview

The use of non-disclosure agreements (NDAs) in schools is rising, but what actually are they? 

The Department for Education (DfE) has said academy trusts could use NDAs “to protect confidential or sensitive information where appropriate”, but that they must be “entered into voluntarily by both parties”.

NDAs are more commonly used as part of settlement agreements in the education profession. We have published another article about settlement agreements here.

In this article, we refer to information from ACAS on the topic of NDAs and look at examples of how they can be used in schools.

What is a non-disclosure agreement?

ACAS explains that an employer might use an NDA to stop an employee sharing information.

An NDA can also be known as a ‘confidentiality clause’.

It’s a written agreement and could be:

  • In an employment contract
  • In an ACAS settlement form (COT3), written up when an agreement is reached through ‘conciliation’
  • In a settlement agreement
  • In a separate standalone document

This might be when a job starts or ends, or at another stage.

Examples of reasons an employer and employee might agree to an NDA include:

  • After a dispute, to keep details confidential
  • When someone starts a new job, to protect an organisation’s secrets

When should a school not use an NDA?

ACAS explains an NDA cannot stop anybody:

  • Whistleblowing
  • Reporting a crime to the police

An NDA should also not be used:

  • Before seeing if another solution can be used instead
  • When they’re not needed
  • To stop someone reporting discrimination, harassment or sexual harassment
  • To cover up inappropriate behaviour or misconduct, particularly not if there’s a risk of it happening again
  • To avoid addressing disputes or problems in the workplace
  • To mislead someone

What else can the employer do?

ACAS explains it’s a good idea for the employer to follow full and fair procedures to try and resolve any workplace issues, instead of using NDAs. For example, they should follow workplace procedures such as:

  • A disciplinary or grievance procedure
  • An investigation
  • A whistleblowing procedure

This can help:

Avoid problems getting worse

  • Avoid legal action
  • Stop the employer from losing talented employees and workers
  • Keep employees feeling valued and motivated
  • Encourage a more open and productive workplace

If NDAs are used for the wrong reasons, it can create a culture of distrust in the workplace.

Instead of using an NDA, it’s a good idea for employers to:

  • Encourage an open, inclusive workplace culture
  • Support employees

Employees should feel they can:

  • Speak up about any issues
  • Be confident they’ll be heard
  • Have their problems addressed in an appropriate way

Checking if an NDA is really needed

If an employer is considering using an NDA, they should look carefully on a case-by-case basis to see if:

  • It’s definitely needed, for example some issues might be already covered by data protection law (UK GDPR)
  • It could cause serious moral or ethical issues
  • It’ll cause any other negative outcomes or effects

When an NDA might be used

When an employer and employee or worker make an agreement to resolve a dispute in the workplace, they might use an NDA to keep either of the following confidential:

  • The details of an agreement
  • The fact that an agreement has been made

Keeping details of an agreement confidential

This is when an employer and employee or worker want to settle an issue and one or both of them want to keep confidential:

  • The sum of money agreed in a settlement agreement
  • Some or all of the other settlement terms
  • Some or all of the circumstances leading to the settlement agreement

This does not stop someone from saying that an agreement has been made.

Keeping an agreement confidential

This is when someone wants to keep confidential that an agreement has been made.

This might be when only certain people know about the agreement and they do not want others to know.

Other reasons for using an NDA

NDAs might also be used:

  • To keep an organisation’s information confidential
  • When an employer needs a lot of protection for customer or client identities, intellectual property or other sensitive or important business information
  • To keep confidential certain things the employee knows about the workplace or business
  • To stop someone making critical or insulting comments, for example about the employer or employee, specific people in the workplace, the service that an employer provides, or their customers and clients
  • To help protect someone if the details of a dispute or dismissal became widely known

ACAS has also published a comprehensive guide to NDA’s here.

How are NDAs used in schools?

Confidentiality policy

Priory Woods School and Arts College in Middlesbrough has a staff, student and volunteer confidentiality policy

It explains that as a precautionary safeguarding measure, Priory Woods School will ask all staff members, volunteers, visitors and external agencies who work closely with the school to sign a non- disclosure agreement. 

The headteacher / school business manager is responsible for ensuring that a non- disclosure agreement is signed by all individuals who may be privy to information which is not suitable to be shared.

NDA when schools join a Trust

Warrington Primary Academy Trust has published a brochure for schools which are interested in joining the Trust. It explains, “as good practice a Non-Disclosure Agreement is signed to protect both parties as they share information and data. We will share our communication pack, giving the school templates to use when communicating internally and externally about joining a Multi-Academy Trust.”

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The information contained within this article is not a complete or final statement of the law.
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