Gag Orders and NDAs Are More Common at UK Arts Organizations Than You Think, According to a Troubling New Survey
There are some suggestions, though, that prominent cases of the #MeToo era are changing the practice.
Arts organizations in the UK are facing growing pressure over their use of confidentiality agreements to cover up allegations ranging from sexual harassment to bullying and financial mismanagement. Victims and whistleblowers who were among the respondents to a new survey suggest that the use of non-disclosure agreements, or NDAs, is far more widespread than previously thought.
One in six respondents to the anonymous survey conducted by the organization Arts Professionals said they had been offered a financial settlement (or “gagging order”) in return for their silence. The authors of the report concluded that NDAs are being used to avoid negative publicity and control dissenting voices. (The survey, conducted online, was taken by 500 participants. Anyone working in the UK arts industry could participate; the survey organizers acknowledge that this makes for a self-selecting sample group.)
This comes after the UK government, under then prime minister Theresa May, had expressed concern that NDAs were being used unethically by some employers and their lawyers to silence victims of sexual harassment. Boris Johnson’s government has committed to passing new legislation that would prohibit NDAs being used to try and thwart individuals from disclosing information to the police about alleged criminal offences.
NDAs in the art world are being used to cover a wide range of issues. One person who responded to the survey said that some leading organizations, which receive public funding via Arts Council England (ACE), include confidentiality clauses in contracts issued to artists, a situation they described as “extraordinary.”
A spokeswoman for ACE says that it does not use NDAs with its staff or artists it directly supports. It does not oversee non-disclosure agreements between organisations it funds and their employees but it “would discourage the use of NDAs, particularly to silence people around matters of public interest, or deter legitimate whistle blowing.”
There is some evidence that museums and art galleries that have asked employees to sign NDAs during disputes or layoffs in the past are scaling back their use. “We were astounded when a major museum removed a confidentiality clause,” says Clara Paillard, the president of the PSC trade union’s culture group. The case involved a transgender employee who claimed that they had been assaulted in the workplace. She wonders whether the prolific use of NDAs by the late billionaire Jeffrey Epstein and “other monsters” has made institutions wary of trying to silence employees in sexual harassment cases. Disgraced film producer and now convicted rapist Harvey Weinstein used NDAs for years to silence his victims.
Paillard points out that such cases are rarely straightforward. Just as employees might not be confident of winning their case in an employment tribunal, an employer also might prefer to reach a settlement when the evidence may be one person’s word against another’s. Sometimes the victim feels it is in their best interest to reach a confidential settlement. In other instances, they might instead push for legal accountability. One survey respondent told of how they decided against signing an NDA on offer. “I didn’t accept the settlement agreement they offered and had my three days in court instead… which I won,” they wrote.
Liz Hill, the director of Arts Professionals, says that she feels most of the NDAs referred to were used “as a means of stopping employees from spilling the beans on things that their organizations have been up to that others—whoever those ‘others’ may be— wouldn’t approve of, or worse still, things that were unlawful.”
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