Campaign published a lengthy report on NDAs—non-disclosure
agreements—which have allegedly been used by White advertising agencies to hush
victims of abuse and harassment from bullying, sexism, and racism. Although
most victims, especially victims of racism, don’t get an NDA—they get NADA.
Harassment
in adland: agencies hesitate in stamping out gagging clauses
By
Gurjit Degun
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.”
