Yesterday, Steve Kneale led with an article looking at Non-Disclosure Agreements in christian organisations. The basis of his article was a report in the Times about a Tearfund employee acting as a whistle blower. Now, my gut reaction was that when someone heads off to talk to The Times and The Times leads with an attempt to compare one incident reported to them with the scandals that ran rife in other NGOs recently it does look a little to me like Tearfund are being targeted in a questionable manner. Tearfund have rebutted the accusations in the Times with this response and I note that they are explicitly clear that yes an incident did occur, there is no cover up there. However, they do defend the inclusion of NDAs in severance. I find that a rather naïve stance as it risks the organisation being unfairly perceived and having something to hide.
Like Steve, I don’t want to get into the ins and outs of the specific story. I want instead to focus on the issue of NDAs in churches and Christian organisations. I’ve heard in recent times of a number of cases where these have been evoked in church contexts. Like Steve I believe they have no place in church life.
Now, to be clear (and I hope this doesn’t come as a surprise), you are not free to simply go around saying what you like about your previous employer. If you say things that are not true you slander them. More than that, businesses are entitled to protect their commercial interests and then there are issues such as data protection and national security. All of those things are covered by legislation and regulations (GDPR, The Official Secrets Act etc) and probably by terms in your contract about protection of commercially sensitive information and intellectual property.
Furthermore, from a moral perspective and a wisdom one, I don’t think that we can or should just go round saying what we like to whoever we like about whatever we like relating to our church, family or employers. People who do that will find it quickly backfires on them.
However, if we start relying on NDAs to police those basic principles, I think we are likely to run into big problems. The first is that I find Tearfund’s claim that NDAs are designed to protect both parties to be particularly naïve. If I have to leave my church or my workplace, then I know that they carry a lot of power and influence. If it is a Christian organisation, I should be able to rely on them to not slander me! If they have something truthful to say I’d rather it was out in the open. However our culture rarely sees people’s names sullied or reputations destroyed by something factual about them being openly shared. Oh no, it’s the raised eyebrow at a name mentioned or the pause in responding to a question. It is often the non-verbal cues and the silences that kill.
The problem with NDAs is that far from protecting both parties or third parties they are blunt instruments that are disproportionately unfavourable to the individual leaving the organisation. Let me demonstrate this with an example. Supposing a church and the pastor part ways. There has perhaps been a significant disagreement, perhaps a bitter falling out. In what circumstances would an NDA be invoked? It is likely to be where a settlement had been reached. However on what basis would that settlement be put together?
Well first of all, there needs to be a presenting issue. This means one of x possibilities.
- That the pastor has done something wrong, morally or legally. For example, if he has committed adultery.
- That the pastor has been falsely accused
- That there has been an irresolvable disagreement over a theological issue
- That there has been an irresolvable disagreement over a policy decision or project.
- That there simply were personality differences within the team.
Now I cannot see anything on that list which would justify an NDA. If the pastor was in sin or error then it would be reasonable when approached by another church for that church to know the facts. If there are personality differences then so what -that is probably going to be the assumed reasons for many people moving on. If the other elders or church members differed with the pastor over an issue including a theological one then again, I would ask what is the deal. This week we heard of a pastor moving from one church affiliation to another because he had changed his mind on baptism. In that case it is reasonable for all parties to know this to prevent speculation or misunderstanding.
In fact, far from protecting both parties, the NDA is likely to disadvantage the individual leaving disproportionately. Which is why they re often seen as a commitment required in return for a generous settlement. You see, the biggest risk to someone’s reputation after the raised eyebrow or the pause is not the disclosure of facts. Again, disclosed information can be investigated and refuted. Rather what is likely to happen is that gossip and rumour slips out from individuals. Now in a church case, depending a little on how your charity governance is structured, it is probable that individual church members will not be subject to the NDA. It will be between the organisation and the person who is leaving.
What this means is that the person moving on is prevented from defending themselves against rumours and false accusations by the NDA. You see, if such rumours come to light, they should be able to say “No, that is false and here is the evidence. I met with the trustees/elders and we confirmed together what the facts of the matter are.” An NDA becomes in effect the equivalent of going to court, successfully winning the case but the judgement being kept secret and you being told that whilst you won, you cannot rely on or make use of the verdict in your future dealings.
My concern is that NDAs are unlikely to actually provide protection where needed but are likely to encourage secrecy cultures.