NDAs

It’s a sad fact that we develop a system, pass a law or create a resource to satisfy a need and before you can say ‘disclosed’ it is being abused by people who want to corrupt. Non-Disclosure Agreements have been used to silence those who have suffered bad treatment – at the moment the attention is mainly on sexual harassment. But NDAs are used all the time in business and personal relationships. They have become part of many transactions.

Indeed, it is credible to say that NDAs are the evidence that our lives have become unattractively transactional. Clarity is important. I notice more sloppy talking today than in my early years in business. As we then had long communication lines we had to be specific. Someone wishing to see me recently exchanged 11 emails and messages with my EA and myself in order to make an appointment. One would have sufficed if my visitor had been clear. Clarity is important and the law and legal documents aim to make an issue, an intention or an agreement crystal clear.

Sometimes they fail but that is no reason for not trying. The question is how much should NDAs be used to silence those who might disclose information to the detriment of another party? And what right does someone who has signed one have to break an agreement? And when? The heart of the matter is about intention. It is difficult enough for us to determine our own intentions let alone anyone else’s. And intention changes over time.Try pinning down the mixed intentions of a couple getting divorced in a friendly way and you will quickly understand the problem.

Where a law has been broken an NDA clearly becomes null and void. Or does it? The seal of confession is a good example of the dilemma. If a teacher of a nearby school confesses systematic abuse of children to a priest is he not allowed – even obliged – to tell the authorities? Apparently not. The social cost of this has been incalculable. But what about where the law may have been broken? Can an NDA be disregarded in order to establish whether the law has been broken – and consequently it is acceptable to breach the NDA. A serious chicken and egg dilemma.

The issue raised by many NDAs is what is the position of morally bad but not necessarily illegal behaviour. Organisations of all sorts have come to learn that society is increasingly unwilling to tolerate behaviour it sees as incompatible with institutions’ declared moral standards. Good examples are non-physical sexual harassment and workplace bullying. Mild harassment of all sorts is often not illegal and what constitutes bullying is difficult to define in a general sense although individual cases are usually fairly easy to spot.

Many years ago one of my grandchildren, then aged six, expressed the view that a request to help move dirty crockery from the dining table to the kitchen was ‘an act of slavery’. His parents’ somewhat decisive riposte taught him otherwise. Hardly an act of duress though today I can believe it might cause a child to end up in childcare. Strange how our standards change.

The validity of NDAs is called even further into question by the rise of the status of the whistleblower. Known more colourfully as a ‘sneak’ in my schooldays, it has become clear that whistleblowers have a very useful function to fulfil in a wicked world. That doesn’t stop virtually all employment contracts attempting to outlaw disclosure of a company’s wrongdoing.

Looked at broadly, the issues of good behaviour and its place in organised business life needs a thorough overhaul. What often used to be determined by the religious convictions of the single or family owners of a business is still appropriate even though religion may have waned or changed and ownership is now diffused. But it is difficult to legislate honour into a statute.

A renewed sense of honour is what we need, whatever its source and however its policing. It is time to address this difficult, subjective issue before we are legally prevented from smiling at each other for fear of a harassment suit.

And before we lose all sense of humour, that most decent emollient of living together.