Yesterday, the Office for Students (OfS) announced new requirements for universities in England to protect students from harassment and sexual misconduct. This includes a ban on non-disclosure agreements (NDAs), commencing on 1 September 2024.
Scotland’s universities have been united behind a position never to use NDAs or “confidentiality clauses” in cases of harassment since 2019. The sector in Scotland is clear that any such use of confidentiality clauses would be wholly unacceptable.
Our full position statement, first published in 2019, can be read here.
As part of the shared position, all Scottish universities are committed to the following good practice:
- Confidentiality clauses should always make clear to individuals what their disclosure rights are;
- individuals signing settlement agreements containing confidentiality clauses should always receive independent legal advice that includes clear advice on what their disclosure rights are; and
- being clear about disclosure rights should always include being explicit that nothing in a settlement agreement prevents an individual from reporting an alleged criminal offence to the police.
The suite of guidance and requirements on sexual misconduct as published by the OfS this week goes beyond the issue of NDAs and speaks to the broader role and responsibility of universities in the prevention and intervention of gender based violence. Whilst this does not apply to Scotland’s universities (the OfS does not have a regulatory role in Scotland) this is a responsibility that Scotland’s universities take very seriously.
Next month, we expect to publish a evidence-based progress report of the Scottish sector’s work to tackle gender-based violence and other forms of harassment in the student community over the last five years. The report will be published here.