New rules restricting the use of Non-disclosure Agreements (NDAs) have been recommended to the Sydney Anglican Synod (church parliament), which meets later this month. The proposals seek to limit the use of NDAs except in some very limited situations.
Uphold, an organisation that seeks to protect vulnerable gospel workers, has welcomed the report but would like “to see a “Synod to strengthen our response by condemning in the strongest possible terms the unethical use of NDAs and acknowledging not only the evil done under our watch but also how our use of NDAs has covered up and enabled abuse, and in doing so has re-abused victims.”
The report from the Diocesan Standing Committee concentrates on the use of NDAs when a church worker’s employment is being terminated. “We acknowledge that the use of NDAs in these circumstances can be used to cover up ungodly behaviour or to protect an individual or organisation from reputational damage. We also acknowledge that in a circumstance like this the effect. of an NDA might prevent the appropriate reporting of misconduct, or even the healthy processing of the events by the people involved. Further, we acknowledge that when NDAs are used in this way, a party to an NDA who feels aggrieved by the way they were treated may later regret having signed it.
“Nevertheless, it is also recognised with compassion that at the time of signing, the NDA may seem to the aggrieved party as a “lesser of two evils”- preferring to sign in order to bring the kind of immediate resolution to a difficult chapter which could assist their future employment prospects, their mental health (or the mental health of other family members), or their immediate financial circumstances.
“A member of the clergy may feel especially constrained in these circumstances by the unique vulnerability they and their families experience in times of change, given that the loss of a job usually also entails the loss of a familiar home, an established church family, and settled schooling for children.”
In the Sydney Anglican Diocese, there is a power differential between senior ministers / rectors in charge of a parish and other staff. The report acknowledges what might drive a senior minister or school head er to bind a staffer they have fallen out with to silence. “the Diocese of Sydney is a relatively unique and small community in which reputation is a carefully-guarded commodity (more so than in other employment contexts). For this reason, it is a community in which anxiety about gossip and reputational damage is particularly high.”
The report gives examples of when an NDA should not be used:
• Where an NDA is used to protect the confidentiality of a financial sum but where the NDA could be understood to include confidentiality with respect to any other matter.
• Where the payment of a financial sum in excess of regulatory or contractual requirements (in any kind of settlement) is made contingent upon the signing of an NDA which includes confidentiality with respect to any matter other than the financial sum itself.
• Where an NDA is proposed at the point of employment separation and is not time-limited (except in the case where the NDA relates only to a financial sum or where the NDA is one_directional in favour of a victim of abuse/misconduct where they are found to be a victim by a reliable, independent investigative process).
• Where a one-directional NDA is proposed in an employment settlement but where there has not been an independent investigative process that establishes the “facts” of the case.
Examples of where an NDA might be legitimately used include
• Where an NDA is utilised as an instrument between two or more corporate or legal entities (i.e., it does not involve a “natural person” or individual).
• Where an NDA is employed in governance contexts to ensure confidentiality of matters discussed by a Board or Committee.
A case study of bad use of a NDA
Uphold’s chair, Mike Doyle, who has been helping mistreated gospel workers for over 15 years and is a senior minister in the Sydney Anglican Diocese, described an egregious example in the Uphold response to the Standing Committee’s report.
“In one relatively recent case, whilst on medical leave an assistant minister was given an “intention to terminate” letter. [This is part of the diocesan dismissal process.] One of the reasons given is that he reported a workplace injury. Despite three independent medical experts agreeing that the parish workplace contributed to his mental health injury, the senior minister, with the unanimous agreement of the wardens and support of a Sydney Diocesan Services (SDS) employee, said the assistant minister was “irrational and unfounded” for making this claim.
“The assistant minister was told that he had seven days in which to resign and sign a deed of release, or he would be terminated. The deed of release was passed on to him by the SDS Employment Department on behalf of the senior minister and wardens. It included an NDA clause. Signing the deed of release would have meant that the assistant minister would not be free to report his concerns to the Office of the Director of Safe Ministry.
“The deed also included a clause stipulating that the assistant minister’s wife and children must leave the church property immediately. Signing this deed would have meant immediate removal from their church community, discipleship groups, youth groups, kids club and other church ministries. Several days after the assistant minister resigned, the regional bishop allegedly called to encourage him to sign the deed of release “for his own good”. Whilst there’s every possibility that the bishop had genuine concerns for the welfare of the assistant minister, considering the power differential and context of what was happening, it was easy for this to be perceived as a threat.
“This is a case of several people with significant power and influence—a senior minister, the wardens, the SDS, and the regional bishop—working together to prevent an assistant minister from sharing his concerns with the Office of the Director of Safe Ministry. This is not about caring for the assistant minister and his family, but about preserving reputations and presenting a false narrative. Furthermore, it subverts the processes that Synod has set up to deal with allegations of unacceptable behaviour, reduces transparency, and avoids accountability. How is this a good thing for our diocese? Why is it that the SDS and our regional bishops are involved in silencing those who allege abuse, and undermining the will of Synod? You can just imagine the devastating effect this sort of process has on victims and their trust in our diocese. It is no surprise that this assistant minister no longer works for a Sydney Anglican church.”
Putting things right
The report suggested “All parishes, diocesan organisations, and schools should be encouraged to consider whether they have used NDAs in the past which contravene the principles and recommendations of this report; and, if they have done so, to welcome approaches from those who may have been subject to such NDAs with a view to considering the offer of an apology, and, the offer of a formal (written) release from the terms of the NDA.”
Uphold’s Mike Doyle believes this process should be improved. “I think this is the wrong way around. It should not be the responsibility of the abused victim to approach their abuser and ask for their gag to be removed. Where we have silenced complainants, we should be actively seeking them out, offering protection, releasing them from their obligations, repenting of our part in silencing them, and seeking their forgiveness. This is a matter of urgency. We have done wrong, and it has brought dishonour to God.
Uphold Response: https://www.uphold.org.au/…/9871a5…
Standing Committee Report: https://www.uphold.org.au/…/9871a5…
Image credit: CJS*64 Flickr