Confidentiality Agreements and NDA’s – Valuable tools or license to re-offend?

Prompted by a piece in ‘People Management’ at:

I cannot help but wonder how many more victims of serious offending, from rapes, sexual assaults, fraud through to bullying, harassment, and other HR violations, have resulted due to poor investigation and knee jerk short-termism reaction from HR and legal?

Putting the central tenet of this article, cost, aside for a moment, what about the impact on your people?

Open-source evidence from the sporting world to education, business to entertainment, underpins that such agreements have created many hundreds of ‘victims’, some of whom tragically go on to take their own lives. By any evaluation surely an unacceptable consequence.

I am reminded of the observations of a potential client a few years ago that was looking to commission external investigation into serious (sexual) misconduct in the workplace: “Thank you for your excellent presentation but on this occasion we have chosen to go with someone more aligned with our ethos” (to bury the issue behind an NDA, payout, and move the culprit on to create more ‘victims’).

Disappointment at not securing the contract was replaced by elation within a second!

Turning to cost, the decision of this entity went on to cost them £500,000 when the flawed process was exposed. Cost of our investigation if commissioned? Circa £5-10k. As counsel say – “I rest my case”.

It does prompt a debate on the culpability of the decision-makers who agreed and approved these sanctions, morally if not legally?

Government are moving to outlaw the process, not before time in the view of this author, maybe they should go the extra mile and mandate disclosure of misconduct that might amount to a criminal offence?

We can’t claim to be ‘independent’, someone has to pay, preferring to use the phrase ‘external, neutral, and non-judgemental’, values that are core to our ethos, so if you don’t want detail, accuracy, and reliable facts to help inform your decision-making don’t commission us!