When we use the word cost, we naturally first think of sums of money, great or small. But the word cost is much more frequently used in contexts that have nothing to do with tangible wealth. It is about some kind of depletion of resources, whether it happens to an individual or organisation. ‘It cost him his reputation’, we might say. We may also refer to the costs of a dispute which involve the loss of health for an individual. Alternatively, we may be referring to the damage to the reputation of an institution. All these negative outcomes can be described as costs which have nothing to with monetary wealth.
In the last blog post written by ‘Jonathan’ I wanted to provide, as part of the blog, something of my own commentary about the NDA placed in front of him as part of the way of settling his dispute with the diocese. My thoughts were not able to be confined to a short paragraph, so I decided to write another blog on the topic of an NDA. My personal reflections here try to go further than just Jonathan’s individual case. I can see that, from my perspective, the costs of such a procedure fall on individuals and institutions beyond those immediately involved. It is these wider costs that I want to examine in this blog piece.
Returning to Jonathan’s story for a moment, we can see how the pressure on him to sign a confidentiality agreement was a pivotal moment in the story. After a great deal of soul-searching, Jonathan decided that he could not in conscience sign it. He appears, in spite of this refusal, to have received some kind of cash settlement for what he had been through at the hands of his training incumbent and other failures in the way the diocese handled the complaint. The things that were not attempted were a proper independent examination of the facts and a mediation effort between the two parties. We suspect that such procedures, needed to create a just resolution of the whole episode, were deemed far too time-consuming and embarrassing for the powers that be in the diocese. The nasty things that were revealed through the whistleblowing by Jonathan were best left in the cupboard and not disturbed. The preservation of the status-quo was considered to be a far more desirable outcome than a fearless search for justice and resolution of the problem.
So far, we have begun to identify a number of costs incurred in the unresolved story of Jonathan’s ordeal. Superficially the payment he received, whatever it was, represented one cost. It was an arbitrary monetary sum, designed in some way to mitigate the pain that Jonathan had suffered. In passing we note how very hard it is to put a monetary figure on such things as the pain of being humiliated by an employer, followed by the loss of employment, home and mental well-being. These other obvious costs were those paid by Jonathan himself. We have mentioned the loss of a vocation and livelihood. There were also the considerable cost of having his sense of self and dignity undermined. The NDA process, as we have already indicated, has little interest in justice and healing for a damaged individual. It is an institutional response to a organisational failure. By trying to bury the whole episode in the NDA/cash settlement process, the diocese was denying Jonathan the opportunity to find any sort of completion or healing. He was left with a sense of failure without any opportunity to regain his sense of self-worth and pride. By denying him the opportunity to defend his behaviour by looking at all the facts in an impartial way, the diocese forced him to pay the price of living with a sense of failure and unfinished business.
What other costs are incurred in the execution of an NDA process? If Jonathan had to endure both internal and external pain alongside the attempted imposition of the NDA, the stress on the institution imposing the NDA is likely also to be damaging. When any institution wants to avoid embarrassment and then finds itself using secretive NDA systems of justice as a way to protect its reputation, will not that process always be morally corrosive? Maintaining open justice within an institution is indeed costly but compulsory secrecy is also likely, in a completely different way, to involve cost. When an organisation insists on high levels of secrecy, it has to involve quite a number of people. These individuals will have various levels of involvement. Some will be directly involved in the questionable morality involved in the NDA process; others, less directly involved, will still be morally contaminated simply by knowing about it. Secrecy as an alternative to open systems of management is never a good substitute. If the public discovers that a hitherto trusted institution like the Church has deliberately hidden information or bypassed the cause of truth in some way, the consequences can be telling. Politicians may lie with bravado, but their parties are normally punished later at the ballot box. Church leaders may not be subject to a similar popular mandate every few years, but the mood of a watching public can be equally cynical and ready to withdraw support and respect. The existence of something like an NDA anywhere in an organisational system screams out loudly the message, we have something to hide. That fact is likely to contribute to a further corrosion of trust in the institution that used to be taken for granted.
In short, institutions are almost inevitably damaged when NDAs are used. This damage is created right across the board, both to those who impose the NDA and those who are its objects. Over the years, few details of NDA cases reach the public domain as the signature of the complainant has shut down sharing of information beyond the barest outline. From the information and rumour that does leak out where the church is concerned, it seems that the typical pattern is for the leaders to subcontract the whole process to compliant firms of lawyers who work closely with public relations advisers. It might be hoped that the morality of lawyers acting on behalf of the Church would inevitably be of a high ethical standard but this, in some notorious cases, appears not to be true. Lawyers are, on some occasions, even instructed to act against an individual with the sole purpose of demoralising and frightening them. It is clear that the secular legal system and the church’s own legal protocols can be, and are sometimes, ‘weaponised’ against individuals. Instructions are given to harass those who fight back against the will of the powerful figures within the institution. When an NDA is involved, it suggests that the institution feels it has something to lose, not the individual under attack. ‘Buying’ secrecy in this way seems almost inevitably to demean and corrupt those who actually write the threatening letters and those who commissioned them to do so. At its simplest level the NDA is a weapon of power used by the powerful to intimidate and threaten the weak.
In summary, an NDA causes damage to three parties, the individual having to agree to it, the institution insisting on it and the people who administer the process. If we can speak about an institution having a conscience, then this is a case where the organisation and those who set up the NDA should all have a sense of the thorough seediness of being involved in such an activity. If the lawyer or the church official is totally upright before this procedure was begun, we would hope to see some level of dissonance or disturbance within his/her conscience by being part of such a process. In this situation we can say that one of the costs of the NDA is that a church official or lawyer has been corrupted by having to go along with this doubtfully ethical procedure. It is hard to see that anyone anywhere near the process can remain morally unscathed. How are the principles of openness and justice ever served by this process?
The NDA agreement that exists between the diocese or the CofE as a whole and the individual should be completed through the signing of a form and the handing over of cash. The situation is now resolved -or is it? There are, common sense tells us, many other pieces of unfinished business which represent additional costs. These are likely to appear only in the future. Money, as in abuse cases, seldom provides healing to the one who sought justice but failed to find it. The legacy of health issues may linger for survivors over decades and perhaps never be resolved even after counselling. The unhealed wound, represented by the victim of an unresolved case of injustice, may suffer from PTSD. As Paul observed, if one part of the body suffers, all suffer. I see NDAs being like plasters which cover a wound but do not allow it to heal. A wound needs sun and fresh air to be fully healed. As the editor of this blog, I am increasingly aware of the breakdown of trust that exists when, for example, agreement cannot be found between a vicar and members of a parish. Not many of these cases result in NDAs, thankfully, but a failure of reconciliation when things go wrong at the local level, is a serious impediment to the work of the church. The Percy case will long be studied as a massive failure to provide open systems of justice. How did we ever allow a system of church justice to be in operation that allowed a dispute between bishop and dean to be so visible? That case and the unwillingness of the central body to find out all the underhand aspects of the four year saga has on its own done damage to the spiritual and institutional health of the entire Church of England.
A friend of mine signed a non-disclosure agreement with an employer. Accordingly he could say nothing about his time working there, other than in the most general terms that it had been a very difficult experience.
A few years later I found myself working briefly at the same place. Without very much data from this friend, and with a reasonable amount of other data which appeared to show it to be a good place to work, I took on the role. I had lost touch with the friend too, but only when I’d been working there a while did I see him briefly. Again he didn’t say anything, but his facial expression and body language were revealing.
Towards the end of my contract there it became obvious that they had some management challenges going on. They were also nervous about being sued.
People Skills were in short supply, shall we say. I witnessed some public humiliations, a bit of bullying, snooping on people, that sort of thing. I was offered an extension, but on lower money. Classy. Not. I declined.
I agree that the NDA is a sticking plaster. It fixes nothing. The poor systems or shoddy management are simply allowed to continue until the next person decides to sue. Of those who don’t, there’s a pyramid of destruction, of lives damaged, some of which never really get fixed.
But of course, as workers we may indeed be at fault or not much good. However when you discover a repetitive cycle it becomes clearer where the real weakness is. Until the organisation gets to grips with this, instead of hiding behind NDAs, it will only prolong its own decline. Obviously lawyers will offer this option, but it’s a lazy and ineffective one.
Steve, A NDA is only enforceable if its objects are in themselves lawful. The obvious and usual example is an employer’s entitlement to protect their intellectual property, which may have involved them in research they have carried out at a cost of millions, potentially being passed on to a rival organisation.
Stephen rightly stresses the words “in the Church of England” where such factors aren’t going to arise. Using an NDA to conceal bullying and other malpractices is an entirely separate matter. I don’t think it is legally possible to enter into an agreement which ousts the jurisdiction of the courts or the Employment Tribunal or, probably better put, that such an ‘agreement’ has legal validity.
I can’t offer any easy answer about the C of E situation and the understandable reluctance of victims to resort to law. Archbishop Welby is clear that he does not want NDAs to be used. However he may not appreciate that occasionally the ‘wronged party’ has wanted an NDA to protect their own experience and to keep the facts and circumstances, and any monetary payment, remaining confidential. In a strictly non-Church scenario I dealt with several such cases which were dealt with by the Court making a confidentiality of settlement order.
I just wanted to make the point that an NDA can be legitimate where its purpose is legitimate.
Yes, I can see that it is my business if I am compensated. But if I choose to ignore an NDA, can it be enforced?
That’s a very wide question, and the best I can answer is “probably not”. There’s a government guidance page about NDAs and confidentiality agreements, one factor being whether confidentiality is to bind just one party (without knowing, I suspect your situation) or both. This really is aimed at the commercial world.
https://www.gov.uk/government/publications/non-disclosure-agreements/non-disclosure-agreements
Thanks Rowland
Archbishop Welby has indeed said that he is opposed to NDAs, but practice is not keeping up with his avowed intent. NDAs are still being imposed. Sometimes they are called ‘confidentiality agreements, but it amounts to the same thing. Sometimes the threat which induces a priest or other employee to sign is not the withholding of a settlement, but CDM proceedings. CDMs are known to be so onerous and stressful that some will sign an NDA just to avoid them.
That scenario seems to me to be using duress. I strongly suspect that such NDAs are, in themselves, unlawful and unenforceable.
I think it’s perfectly proper for the C of E to enter into a confidentiality agreement where the survivor wishes details of the abuse or any financial settlement not to be public knowledge. Some of our Archbishop’s pronouncements do tend to be dogmatic or over-simplistic. Which brings us back to the basic point that any such agreement or NDA must have a legitimate purpose and be freely entered into by both parties. But, with that necessary qualification, all power to the Archbishop’s wishes. Perhaps he should be told about the cases you mention.
There’s plenty of literature available about this subject but, as I said to Steve, it is mostly directed to the commercial world.
This post makes perfect sense to me personally but I don’t think the sense it talks about costs really pertains to many organizations.
I think there has been a change over the past decade plus, accelerating since covid, and I think people just do what they want without regard for the consequences, so a mere NDA would be insignificant. We’ve seen incredible behaviour in public institutions over the past few years that indicates people are just happy to trash those institutions as long as they personally are ok.
The church equivalent would be that in reality it isn’t likely that a bishop wouldn’t get paid or get a pension so of course there is no incentive to think of longer term consequences. And it’s not even like they’re going to worry about people stopping going to church because that’s already happened.
The spats giving rise to legal disputes and hush money are usually symptomatic of deeper organisational malaise. Abolishing NDAs or whatever, won’t cure the patient. A reduction in their frequency might lead to the impression the patient’s health was improving, but other procedures could just as likely be utilised to continue the attempt to conceal the underlying illness. Time will tell.
NDAs are used across the C of E to silence those leaving from telling anyone they have been dispossessed.
I know first hand of colleagues dispossessed, told to tell their churchwardens they are “resigning,” but receiving £60,000 pay-offs that they are not allowed to talk about, to avoid the diocese being embarrassed by this sort of financial profligacy – and in a diocese where this happens, they obtained a grant of £550,000 from Archbishop’s Council to help pay off clergy to, as they said, balance the books, when the grant could have been used to help tide the diocese over until it got back onto a firm financial footing.
I confronted the acting bishop about this conspiracy to tell clergy to lie, and the synod wholeheartedly backed my call for such disgraceful practices to end, but they are still carrying on.
Too much power has been given to bishops, when they misuse the Common Tenure Measure 2003 and Pastoral Measure 2011, where they can sack clergy under the guise of a pastoral reorganisation, and they try to do it without involving Church Commissioners to avoid public confrontation.
Bishops and their acolytes think they run dioceses: that’s “top -down”; in reality, the parishes are the diocese and should be reminding the tail not to wag the dog….
Stephen’s blog is very pertinent. The moral corruption of abusers and those committing misconduct spreads far beyond the original perpetrators and those who initially turn a blind. It ends up tainting many. I can’t think there is any Bishop or Dean who is unaware of the scandals in the public domain. To mention some of the obvious there is the suicide of a priest and the search for justice by survivors of Smyth, the persecution of Mr Martyn Percy, Mr Matt Inneson who still awaits an independent review and so on. The unwillingness of our leaders to reform the Church taints them and this is how moral corruption spreads. Moral corruption easily spreads if people do nothing. Eventually even bystanders are drawn into the mesh. What about all the synod members, both General and Diocesan who do not speak up. The courage shown by those willing to disclose they are subject to ndas, or bullying and intimidation and other forms of injustice has not spread to many of those who can add their voices to the need of reform without coming to harm personally. Truth and justice has a cost as Stephen points out. Even for those who do not profess to follow the One who called himself the Way, the Truth and the Light. To take a current example the cost of a Russian soldier disclosing that soldiers were ordered to rape and kill civilians in the Ukraine. The cost of acting upon the Truth is not some arcane philosophical question. It affects all of us. It affects all those who know the truth of situations yet stand by and do nothing. Will we eventually become a church where all who partake in services know and allow corrupt practices to continue whilst we pray, receive communion, and do nothing? Are these the sacrifices acceptable to God?
This is powerful Mary. Thank you
Absolutely, Mary. That’s what eventually got to me. The “good men who do nothing”. Worse than the actual abusers, and much harder to forgive.
So true. I left my church due to the attitude of the new incumbent towards me. I am a member of the clergy and I explained what was happening to the churchwardens but they were not interested as they were busy impressing the new incumbent.
At the PCC meeting after my resignation the PCC were told I was leaving to take a break after a busy time! Did anyone question it? I dont know but I felt isolated after the long service given to the church. I haven’t been near one again in 2 years.
This is heartbreaking Marjorie. I hope you find recovery from this loss. The Church can ill afford to lose people like you.
I don’t think they’re worse, and I find them easier to forgive than the abuser – but the consequences of their (our) silence and inaction are certainly serious.
Sorry, this was a reply to EA able, not to Steve or Marjory.
Marjory, that is tragic, and too common. It’s a good thing we can follow Jesus without going to church. Although online church does open up opportunities to attend unseen and elsewhere – I now worship with a Church of Scotland parish!
Well it depends how it gets you I guess. I can understand a certain heavy-handedness developing in someone who is themselves under pressure, and in effect also a victim of bullying. I can’t understand the people who looked on while you suffered, watched it happen, and decided, probably over a period of time, each time, to leave you to your misery.
A lot of survivors would agree with you. And so would I, in those cases where an onlooker fully knows what’s happening, has the ability to do something about it, and doesn’t.
But so often bystanders aren’t sure of their perceptions, are deceived by lies, or are living in fear themselves, have mixed loyalties, or simply don’t know what they can do to help. Working for an abusive institution like the C of E means all kinds of pressures and deceptions are at play which you can’t fully realise until you’ve been part of it and then left. For those people I often want to echo Jesus’ words as he looked over Jerusalem: ‘they are harried and helpless, like lost sheep.’
Or, as Jesus said at his crucifixion: ‘Father, forgive them, they know not what they do.’
Abusers, on the other hand, know very well what they do and will go to enormous and devious lengths to achieve their evil ends.
I think NDAs, which are awful, would be used much less if people were less inclined to the very lazy habit of tarring an entire organisation by the same brush.
It would be wrong, Chris, to say all CofE clergy are like Smythe. But it is not wrong to apportion their share of blame to those who knew and did nothing.
I didn’t immediately understand the relevance of your reply; anyway what I am doing is enunciating a very basic principle. What I meant is this. I have found that organisations when they get big get paranoid. They know that if even one representative connected with them is found wanting (and it is scarcely possible that at least one will not be), people will then go around and say ‘Oh, you know what that organisation is like.’. The fault here lies with the lazy extrapolation from individual to organisation. Not with the organisation (or certainly not with the organisation as a whole – that would make little sense: for all members without exception to be implicated in things they have not done). And yet to this day it is the organisations (which are not even living and breathing or capable of doing anything) which are scapegoated, and those who lazily stereotype and rush to judgment (who are the cause of the paranoia) go scot free. I wasn’t thinking of Iwerne, but of megachurches and denominations.
Sorry. I picked Smythe randomly. What I meant was, rather like Marjorie’s story above, no one says anything. That does actually mean they are guilty. They’re not being unjustly tarred! Broad strokes, I admit.
Organisation are made up of people. When we witness a crime or misconduct, we are expected to report it. We can be accused of being accessories to a crime in certain circumstances. Whistleblowing procedures have legal standing. They are in place because of society’s expectation that wrong doing, negligence, misconduct etc should be reported so that it can be dealt with. These are the expectations of our society which tries to uphold justice and and a moral way of living. Whistleblowers have revealed malpractice in government, hospitals, police forces, and so on. When these malpractices have taken place over a long period, a question is always asked. Who else knew about this but kept quiet? Babies have died, and girls have been abused because people did not come forward to report issues. Inevitably this means suffering which could have been avoided, was permitted to occur. That is where we are in the church. Church leaders are by no means the only bystanders permitting misconduct and suffering to continue whilst standing idly by. The duty to take action, protection for which is enshrined in law, is there to protect us. Standing idly by saying it is nothing to do with me, is not an attitude which national reviews and parliamentary committees have endorsed. Niether has the general public. When an organisation which preaches about and makes public statements about morality and ethics, such as the Church, displays lower standards then the society in which it is embedded, public opinion generally judges it more harshly.