Lynn Ruane (Independent) | Oireachtas source

I move:

That Seanad Éireann:

- calls for a debate on the bullying and sexual harassment that exists for faculty, students and staff in Ireland’s third-level institutions;

- notes that third-level institutions should not support the use of non-disclosure agreements, which limits accountability of perpetrators, in such instances; and

- calls on the Minister for Further and Higher Education, Research, Innovation and Science to commit that such issues when they arise, will be dealt with in a holistic and trauma-informed manner, through formal institutional processes and that priority is being given to tackling the issues of bullying and sexual harassment in third-level institutions without the use of non-disclosure agreements where there are accusations of sexual harassment, discrimination or bullying.

I welcome the Minister, Deputy Harris, to the Chamber. I begin this evening by thanking the Cathaoirleach for introducing the panel debate format to the Chamber. It marks a welcome addition to our parliamentary procedures and I believe it will open the door to important debates such as this evening’s debate. I thank Senator O'Loughlin, who will be seconding the motion.

This week saw the return of thousands of students to campuses across Ireland. These are campuses in which the ideals of free speech and accountability as a means of challenging bullying, discrimination and abuse have long been championed - ideals championed unless, as I have unfortunately found, they are used to challenge the institutions themselves. For those who are unaware, a non-disclosure agreement, NDA, which is also known as a confidentiality agreement in Irish law, is a binding contractual agreement that prevents one or more parties from disclosing knowledge designated by the institution as confidential even when this information concerns a complaint of bullying or sexual harassment. Originally, NDAs were designed to act as a legal tool to protect business and industry secrets. However, they are increasingly being used in the third level sector to silence victims of bullying, discrimination and, most concerningly, sexual assault.

This issue came on to my radar in 2017 for the second time. The first time was in the community sector. The second time, I received communication from a group of academics in a particular university who wanted to make me aware of the use of NDAs within their department or school within the university. Their concern was that NDAs were not just used once in the case of a particular perpetrator but were used a number of times with the same perpetrator, who had obviously managed to go on to other universities with a glowing reference and take up employment elsewhere under the guise of a reference written under an NDA where nobody could share what really happened.

On receiving this information, I sat on it for a while trying to figure what role I could play and how I could address it. I did not really understand the issue so I did not come out right off the bat. I tried to think about where I could place this conversation and how I could understand it more. It was not the first time I had heard of an NDA but I definitely did not understand the full ramifications and legal contexts in which NDAs were being used. Over the past number of years, I have carried out numerous pieces of research. Through that research, we have found that NDAs are used in almost every sector in this way and are becoming increasingly common to the point where people are not even questioning whether they are a good tool to use in respect of the potential cover-up of criminal activity, which could be anything in respect of the nine grounds of equality within the workplace. One piece of research involved a small sample in universities while others involved personal testimony. There have been numerous calls to my office in the past two days, since people became aware of what was coming up in the Chamber this week through "The Week in Politics". I got several calls. One woman was offered an NDA that she did not sign but it was offered to her before she even managed to make an official complaint to be investigated by the institution. The way it was framed to her was that it was "you against him" and "we can find you a new supervisor". This involved a postgraduate student and an academic member of staff who was a supervisor.NDAs are even being offered at the point of pre-investigation so that somebody could move on to a different sector. I am not sure if universities at the highest level are aware of this, but these personal aspects are definitely happening at a lower level, within the school level. I do not think there is any mechanism to feed that up, meaning no data are collated at the wider institutional level to understand the prevalence of the use of NDAs.

Much of the research and many of the conversations I have had have shown that somebody's reputation or potential employability will be negatively impacted if they are seen as somebody who pursues complaints in such cases and that it is actually to their benefit to sign a confidentiality agreement. Students are being told that as they are only starting out on their career, they do not want to be known as difficult or as somebody who brings conflict.

I am aware of some NDAs in the university sector that have been reframed in language where it does not state the NDA was sought, engaged in or signed because of a complaint of sexual harassment. It may come up as something like a clash of personalities or a breakdown in working relationships. This is how it is being framed in the official context of an NDA being signed, but actually the victim in this case knows exactly what is behind the breakdown in working relationships.

Compelled by the horrific stories of NDAs and disappointed at the lack of data surrounding their use in Ireland, last year, along with my office and Toby Lowall, I undertook a survey of bullying and discrimination within the Irish third level institutions. It is a small sample but even the existence of one person is enough to indicate their prevalence. As you might imagine, people are frightened to engage in this because they do not have an amnesty in any sense of the word to engage and give the data. They are obviously in fear of the ramifications of that.

We carried out a survey of about 35 people who have engaged in conversations about NDAs in the university sector. The results of the survey confirmed what we already know, that NDAs are used in Irish third level institutions. In addition, the survey found 30% of respondents reported experiences of discrimination, 36% of respondents reported cases of sexual harassment, and 7% of respondents stated they had experienced discrimination based on their gender identity within Irish third level institutions.

Most concerning is that in almost two thirds of these cases, the survey found the perpetrators of these acts of discrimination and abuse were members of academic staff. This is a staggering figure which raises deep concerns regarding power dynamics within these institutions, but when this figure is coupled with the fact the survey found 30% of respondents were forced to sign an NDA following their reporting of these abuses, it is simply unacceptable.

We should pause for a moment to consider what this figure actually represents. It represents a lack of justice. It represents a bully, an abuser, walking away, free to join another of our third level institutions. Worst of all, it represents a victim of abuse and discrimination being silenced.

In addition, public money is often used to silence victims of discrimination and sexual abuse. I have repeatedly shown the prevalence of NDAs within Irish third level institutions. Our UK counterparts paid more than £90 million since 2017 to silence victims using NDAs. It therefore begs the question how much our institutions are willing to pay. What is the price these institutions are willing to pay to silence victims of discrimination and abuse to protect their own reputations? We need to stop for a moment and consider the broader social impact of NDA payments.

Instead of a formal investigation being carried out into accusations of abuse or discrimination and the subsequent termination of the accused’s contract, NDAs allow abusers to continue their career elsewhere, with little or no reputational damage and the real possibility of abusing again. We use NDAs to cover up abuse and then we pass on the trash to somewhere else so that it is no longer our problem. We have managed to remove the problem from in front of us, but we just move it to somewhere else. Obviously, it is detrimental to third parties who have to encounter that person when the new institution has no understanding of what has come before that.

From the victims’ point of view, our survey showed those presented with NDAs had a mixed knowledge of what they were agreeing to. These respondents acknowledged that they signed the agreement without understanding the true scope of what they were agreeing to. Those who question why anyone would sign a document which they did not fully understand, need to put themselves in these victims' shoes and consider the power dynamic that exists. Those in the room are suggesting this is the best, and only, thing they can do to be able to move forward with their careers and lives. I have been told personally of people signing NDAs because the victims of these horrendous abuses were convinced if they did not sign, they would be made unemployable and, therefore, it was in their best interest to sign the NDA. They have just experienced what in many cases is the most traumatic moment of their lives. As they summon the courage to report the discrimination or abuse they have suffered, often at the hands of a peer, they are presented with a document to sign before proceeding. They are promised the document will allow them to move on from their ordeal. However, this same document traps them.

Some 25% of respondents reported that a clause was inserted into their NDA which prevented them from disclosing the abuse suffered to a therapist. The Government simply cannot preach a culture of mental health and speaking out while simultaneously allowing a legal document to permit such things to exist.

Will the Government continue to put its head in the sand on this matter and maintain the status quo, or will we begin to take responsibility and meaningful action to stop bullying, discrimination and sexual abuse on our campuses? Will it do what so many of our governments of the past have done and deny this abuse of power is happening and simply sweep it under the carpet?

I am asking the Minister to speak to the matter in hand but also to outline what we can do. Currently, the use of NDAs is still legal. I have introduced legislation in the House to make that illegal. In the interim, how do we begin to change and challenge that culture? How can a union representative, an academic advocate supporting a victim, a college institution or indeed a solicitor brought in to negotiate an NDA begin to challenge that culture while we wait for legislation to move along?

I thank Senator Norris, who unfortunately cannot join us in the Chamber this evening. However, he asked me to say he is very saddened to learn of the prevalence of this kind of unacceptable behaviour at third level institutions. He said it is an underground thing which needs to be recognised and challenged.