CONFIDENTIALITY CLAUSES

Following some conversations with providers, we wanted to give you some guidance on making offers to students. When a complaint is Justified or Partly Justified we will usually make Recommendations. We can make all sorts of Recommendations to put things right. Our Recommendations may involve the provider making an offer of some kind to the individual student who has brought a complaint to us. In these cases the offer is not a settlement offer (because we have made a Recommendation) but should be made “in full and final settlement of the matters considered during this review.”

It is not necessary or in the spirit of our Scheme to expect a student to sign a very complicated or legally binding settlement agreement, or to sign a confidentiality clause. If we make a Recommendation and discover when monitoring compliance that the provider has tried to go further than we intended with our Recommendation we will normally ask the provider to re-write the offer letter. We would tell the student about this. Examples might include statements in the offer letter that the offer is in full and final settlement of any claim that the student might ever have against the provider or if it attempts to put in place a gagging clause or other restrictive clauses in its offer letter. Our view is that confidentiality or “gagging” clauses are not normally appropriate, and can mean that learning from the complaint is lost.

The provider may make an offer to settle the complaint at any time before we have completed our review and issued a Complaint Outcome setting out our decision, and whether the complaint is Justified, Partly Justified or Not Justified. Where it makes a settlement offer without a formal Recommendation from us, the provider can decide the terms of the offer and it is for the student to decide whether or not they wish to accept it.  We suggest, however, that providers should think carefully before including a confidentiality or “gagging” clause in any settlement offer, for the reasons explained above.