When the "Make NDAs Fair" pledge launched in May 2022, it was a rallying cry to the industry to do better. For too long non-disclosure agreements have been used by corporations to hush victims of abuse, be it around sexual harassment, bullying, racism or sexism.
The pledge was led by a group of industry volunteers – including Jo Wallace, global executive creative director at MediaMonks; Shilpen Savani, a partner at law firm Gunnercooke; and Jerry Daykin, head of global media at Beam Suntory and diversity ambassador at World Federation of Advertisers – and backed by trade associations. It asked businesses to adopt fairer policies when it came to NDAs.
These included absolute freedom to report workplace abuse and sexual harassment; a company paying compensation to settle a workplace abuse and/or sexual harassment claim should have no link to a complainant's silence; protection of reputation should apply to the employer only, so no blanket protection for individuals; and workers should be independently advised before accepting an NDA.
So a year on, how much has actually changed? Sharon Lloyd Barnes, commercial director and inclusion lead at the Advertising Association (which was one of the original backers of the campaign), believes that the dial is turning. She points to the All In census findings.
In 2022 1% of women and 1% of men (out of 18,500 people) who responded to the survey said that they had experienced sexual harassment in the workplace; this is compared with 3% of women and 2% of men (16,000 replied to the survey) in 2021.
"We are sure this is down to industry engagement in TimeTo [the industry initiative that offers training to tackle sexual harassment in adland] and also an increase in self-policing and allyship that we now see in the ad industry workplace," she says.
Savani believes that the "Make NDAs Fair" pledge has had an impact. "There's a far greater awareness that this sort of behaviour is unacceptable," he says.
"What I'm finding as a lawyer who is at the coal face of this is that agency lawyers are much more sensitive and understanding about the dangers of misusing secrecy clauses," Savani says.
He hopes that the movement has also led to people who may be experiencing harassment to know that they are not alone. Savani believes that there are now more people who will speak out about harassment, and those that may harass should be aware that there is a greater chance of them being outed publicly.
"If the victims are less afraid of being clobbered with unfair secrecy clauses, they're more able to speak out. And if they're able to speak out, protagonists have fewer places to hide," he explains.
Low take-up
Despite the NDA and TimeTo campaigns increasing awareness around harassment, it is not always the case that employers are making policy changes.
In this year's annual School Reports questionnaire Campaign asked its 100 UK agencies whether they had signed up to the "Make NDAs Fair" pledge at the end of 2022; just 15 said that they had.
A total of 74 agencies said they had not signed up to the commitment, 10 didn't know and one didn't answer the question.
As the "Make NDAs Fair" campaign was not supported by funding, Savani explains that it's difficult to give strict measurables around it.
Campaign contacted a number of the 74 agencies that had not signed up to find out what was stopping them, but only one agreed to speak on the record.
One person who runs an agency that has signed the pledge, but only agreed to speak with Campaign anonymously, believes many large organisations think that if they look at NDAs, lots of other changes to policies will have to be done at the same time.
"It's this sort of corporate smush of, 'Oh, once we've committed to doing that, then where does it all end?'" they say.
Another reason for adland hesitating to take action may be due to employers worrying about the negative perception it could create.
Pippa Glucklich, chief executive of Electric Glue, notes only 77 out of the 304 agencies that have pledged to support TimeTo have completed the associated training that was introduced in 2021.
Writing in Campaign last month, she suggested some businesses "fear that participating in such training may inadvertently signal that a business already has a problem with sexual harassment that needs dealing with".
The belief that sexual harassment is an "old problem from a previous era" and a lack of understanding of exactly what it is may also be causing the lack of engagement, Glucklich added.
When it comes to the 15 shops that have signed up to the Make NDAs Fair pledge, six are independent agencies and nine are part of a wider network or holding company.
Many of those that Campaign contacted did not reply, declined to comment or would only speak off the record.
One agency boss that did agree to speak with Campaign on the record is Jenny Biggam, co-founder of independent media agency the7stars. She says that nothing has changed since the shop signed the pledge.
"But that's not a bad thing," she explains. "We signed it because we have never hidden behind NDAs to cover up bad behaviour. Instead, we have a supportive HR team who are qualified to provide support to everyone individually, and to deal with any issues."
The7stars introduced the pledge as part of a series of initiatives around safety ranging from bystander training, the TimeTo pledge and the Mayor of London's Women's Night Safety Charter, which aims to tackle violence against women and girls.
Another agency leader (who wished to remain anonymous) that has signed the pledge also explains that the shop is very open with staff, and has a culture where people are able to speak up about wrongdoing in the workplace.
'Upskill' HR to protect victims
Some agencies that have not signed up noted on their School Reports form that they have in-house policies that encourage staff to speak out about concerns anonymously. One of these is Oliver, which introduced its "Safe to say" platform in 2021 during the Black Lives Matter movement to allow staff to speak up about racism. The business quickly realised that the policy should be open for people to speak up about anything.
Amina Folarin, UK group chief executive and global chief inclusion officer, says that signing up to pledges in the industry is one thing but questions if agencies are "walking the walk".
She believes that when a situation gets to the NDA stage it's too late, as the damage has already been done. Instead, Folarin wants to know about grievances as soon as they arise.
"We want to create a culture of physical safety where people can speak up about their experiences," she explains and adds that most organisations are being passive in their approach to dealing with harassment in the workplace.
To create these safe spaces, Folarin says that businesses need to "upskill" HR teams. She previously worked as Oliver's global people director and has held talent and HR roles at other companies including Digitas and ITV.
"I cannot emphasise enough the role of HR," she explains. "If you create safety for HR they can be empowered to do the right thing by the individual instead of doing what's right by the business – because what's right for the business is to protect the victim, not the perpetrator."
She encouraged Oliver's HR team to put themselves in the shoes of the victim. "When people raise a grievance, it is assumed that the person wants to cause trouble, but what if they have been genuinely grieved and what does that mean for them? So it's about changing the mindset."
The results of this means that Folarin has noticed that people working at Oliver are generally more aware of their actions.
But there is still the wider industry to consider. Amy Kean, founder and creative director of Good Shout, a training provider for advertising and media businesses, says that she is constantly hearing stories about sexual harassment in adland. She doesn't think that anything has changed over the past year.
"I'm not discrediting the individuals behind the [Make NDAs Fair] initiative because I think they had the very best intentions," she says. "But I think what we're dancing around and tiptoeing around is the fact that industry people are trying to do every single thing apart from tackle the issue, which is abusive men. No one is doing that. It makes me angry.
"You can have as many workshops that you like attended by reluctant employees who are just treading water through the process but you are not going to prevent criminals – sexual harassers and sexual abusers – from not harassing. And what people are not acknowledging is that it's a crime."
Whistleblowing
Whistleblowing systems, which often include phone lines, are another way for staff to speak up about unacceptable behaviour.
Three of the "big six" holding companies – WPP, Publicis Groupe and Dentsu – publish the number of reports they receive at a global level.
At WPP, incidents dropped by around 25% in 2022 year on year – there were 494 reports in 2021 and 372 in 2022. The most commonly raised concerns in 2022 were around "respect in the workplace" and "protection of WPP's assets".
Publicis Groupe's whistleblowing cases rose 121% year on year with 84 reports in 2022 and 38 in 2021. The business said 70% of the 2022 cases were internal reports and 52% of cases concerned HR issues.
The latest data from Dentsu International is from 2021. Its "Speak up" platform, which is a portal where staff can raise complaints confidentially, received 38 cases in 2021, a 12% fall from 43 in 2020. In 2019 it had 35 reports and there were 44 in 2018 and 12 in 2017.
It is very difficult to draw any sound conclusions from this data about whether the system is helping people to speak up about harassment – mainly because the companies do not specify exactly what the whistleblowing reports are about.
One agency executive who wanted to remain anonymous explains that companies are increasingly encouraging staff to report untoward behaviour, for example through posters in the office, which is a positive step.
Though the change in approach is often due to external pressure, they say. They explain that a reason why companies are taking a stronger stance on sexual harassment and bullying is because there are so many more channels where people can go public with their experience. They add that a rise in cancel culture has also helped.
However, they say that it often depends on how confident someone is in their career and life as to whether they will report a colleague. So often those that are vulnerable will only speak out once they have worked out an exit plan.
'The job is never done'
Kean's solution to the problem is to have an independent body auditing agencies. "It's great to get people to sign a pledge but you absolutely need to have some kind of auditing process, and that unfortunately requires some cash commitment because you need people to do the work. I would love to see the day when there is some kind of central auditing body that actually measures integrity and behaviour in this space."
Savani adds that it's easy to have platitudes in this area. He says that policies are meaningless unless they are implemented in a practical and realistic way. "The way that we put that campaign together was specifically ensuring there were very clear lines to ensure that there would be compliance and there's no creeping backwards when committing to the pledge.
"That, I think, is very different to what some of the agencies are talking about of their own admission. And I think it's an important distinction to make – having generic commitments is one thing but signing up expressly to this type of commitment which ensures this kind of thing actually stops, it's a different kind of support for the whole thing."
Looking ahead, the Make NDAs Fair steering group is set to meet in September to discuss the next steps.
Biggam adds: "The job is never done and it's a commitment to continuous improvement that's important. In the last few years there has certainly been a greater awareness and understanding, which can only be a good thing."
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