“Its all over” my husband wrote to our children after we had attended the one day Judicial Mediation at the Employment Tribunal in 2017. I’d taken legal action against my husband’s former employer, a prestigious school where we had worked, lived and raised our children for many years. I’d taken the school to court for detriment following whistleblowing after raising two concerns – believing the school would want to know – regarding exam cheating and gender pay inequality. My actions led to a protracted period of victimisation and harassment and finally the end of our lives and careers within the school community. In an unusual case, my decision to whistleblow cost my husband his job despite his own unblemished record and his role as a pillar within the community. We were, when it suited the school inter-connected, a spouse should be seen and not heard, yet in my case, my unwelcome disclosures were a threat to the schools reputation and that meant we all had to go.
Of course, it was not ‘all over’, it was only just the beginning of a process that has seen us try to re-build our lives and make sense of the injustice. The mediation was a chaotic affair with the respondents arriving 2.5 hours late, with their solicitor, all of whom had masterminded the protracted period of victimisation. I had been advised by my solicitor, to settle as it would cost me at least £20,000 to proceed to court and the school had already described the army of witnesses they would be reeling out some 12 months hence – cases are notoriously slow to come to court. She advised how hard it was to prove detriment following whistleblowing. This was particularly apt in my case as the real detriment – the loss of my husband’s long career was off limits as evidence, as my husband had already been forced to accept a settlement and sign his own NDA.
The judge spent the few hours of the Mediation remaining, moving between two rooms whilst we deliberated a settlement. I had no idea what was being said about me and the judge had minimal time to try and understand the extraordinary complex case that was presented to him. No notes were kept of my case by either side or the judge. Finally just as we reached the time limit for the mediation, we agreed a settlement sum. There was real pressure to reach an agreement as to not have done so would have led to more costs and more uncertainty. As an after thought it was mentioned that I would have to sign, settle and cease to talk about the case ever again. As we walked from the room, my solicitor told me that in order to save costs she’d let the school produce the agreement. I did not doubt her for a minute.
Within a few days the draft agreement came through – written entirely by the respondent’s solicitor, an Employment Lawyer who is also a governor at a local prestigious school. My solicitor simply sent it onto me asking for my comments, yet gave me no advice or views of her own on the myriad of clauses within it. I had little knowledge of the implications of this agreement, but this was my NDA – non disclosure agreement. In return for a financial sum, I was to be silenced.
The agreement made no mention of the nature of the case brought against the school – it was written in such a way as to portray me as a vexatious individual who had contacted multiple organisations and regulatory bodies, and therefore presented a threat to this irreproachable institution. In various clauses, which are now being investigated by the Solicitors Regulation Authority (for two years and counting) I was barred from contacting any regulatory authority or making any complaint about the school now or at any time in the future. The SRA have indicated that these terms are inappropriate and do not conform to their guidelines, but have advised in a strange twist – considering they are a legal organisation – that they do not have the jurisdiction to make a judgment on whether the NDA is legal or not. They have advised that I would need to take further legal advice to establish that.
Crucially the NDA stated that the school accepted no liability. At the time, I did not consider the significance, feeling a certain sense of satisfaction that I had brought a successful case and the school had decided to settle. Yet of course, the amount they paid me was small fry – even more so as during the mediation the school insisted that they were not allowed to pay out any more. Yet they had bought my silence and at the same time, made clear that they did not accept there was an iota of truth in any of my claims.
The lack of description of my case within the NDA, was also significant from a tax angle – victimisation, discrimination and harassment cases are treated as tax exempt by HMRC (the government tax office), yet without the NDA stating that this was the nature of my claim, I was taxed at the highest rate on the settlement. A fact that I was alerted to by my accountant, which then led to a traumatic appeal process via the HMRC, which was successful. It is clear that the HMRC are making a killing on this grey area – the Employment Tribunal and the Advisory, Conciliation and Arbitration Service appear completely unaware of the tax implications of settlements of this nature and the HMRC appear deliberately obtuse on the subject. I wonder why.
At the age of around 50 a successful and happy life lay in tatters. I now suffer with PTSD which is common amongst whistleblowers and those who have been cornered by the system, into signing a settlement agreement. I have recently experienced a debilitating period of associated depression. After four years the reality bites – my husband has been unable to find equitable employment in the sector he worked in for some 20 years. Naively, ourselves, friends and family were full of hope that the settlement and NDA could draw a line and we could move on, move on to similar successful careers and that the trauma of our departure from the school and community we loved, would fade. Yet this is far from the case – the trauma simply transfers to within, when before you could talk freely, once the NDA was signed, to talk about is seems dirty and you live in fear of retribution when inevitably the injustice of the situation begins to gnaw.
NDA’s are legalised bribery in the 21st century, that in itself is immoral yet the true impact is not openly acknowledged and it must be – that the mis-use of NDA’s is undermining our entire legal system. Centuries of progress in Employment Law can simply be ignored by an employer, their HR team and their lawyers, safe in the knowledge that they can do what the hell they like to an employee they no longer value, because at the end of the process, a wadge of cash and an NDA will buy the victim’s silence.