Settlement Agreements, Non-Disclosure Agreements, Agreed Terminations, and Separation Agreements in the United Nations.

The UN has all that it takes: Ethics Offices, an Ombudsman, numerous policies, SGBs, ST/Ais addressing unsatisfactory conduct, investigations, discrimination, harassment, and abuse of authority, a decentralized system of administration of justice, a code of conduct, Oath of Office and above all its Charter:

“We The People Of The United Nations Determined

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”

But do its senior managers have morality and ethics?

This post looks closely at Settlement Agreements, Non-Disclosure Agreements (NDAs), Agreed Terminations, and Separation Agreements in the United Nations. Sophisticated designations and expressions are all used with the same ultimate goal:

Deter staff from speaking up and cooperating with audits and investigations, employ the existing disparity in the status of power to intimidate staff and coerce them into forced resignations, and offer unjustified financial incentives (i.e., bribery) to lure staff and silence them in return for them signing agreements that prevent them from legally mentioning or pursuing any claim of wrongdoing and misconduct against the senior officials.

Instead of encouraging a safe working environment where staff can report inappropriate behavior without fear of retaliation, these agreements promote an unethical environment.

The Organization uses these agreements for four reasons, the last one being the most innovative as well as representing a direct breach of the UN’s rules and regulations:

• Retaliate against a staff member who reported wrongdoing and coerce them into a forced separation signing the agreement, thus limiting the scope of future reporting or limiting the extent of the damage to an organization’s reputation;
• Use artificial restructuring reasons to force staff into the coerced separation or face an often unlawful and arbitrary performance management process;
• Quietly and diplomatically ask senior officials to leave the organization instead of facing the usual disciplinary process;
• Strangely and, as of recently, use agreed termination for staff about to retire to reward them for their loyalty to senior managers.

In 2020, Action Against Prohibited Conduct reported that “one certain outcome of the use of NDAs in the UN was that – it entrenches the culture of silence that has protected and propagated the organizational culture of loyalty above all else. The UN and other international organizations are far from placing an embargo on such settlements.”

Due to their confidential nature, there is little access to these agreements, and thus the practice remains largely unchallenged. However, aborted or unsuccessful attempts are often described in UNDT/UNAT  and ILOAT judgments. The examples and excerpts below highlight the widespread unethical practices in various UN and other international organizations.

In ILOAT No. 4072, 127th Session, the Judgment read:

“The complainant challenges the lawfulness of the mutually agreed separation agreement which he signed as part of the implementation of the “consolidated transformation plan.” The complainant, who was employed under a permanent contract was called to an individual meeting during which he was invited to sign a Mutually Agreed and he would forgo any right of appeal under the threat of being dismissed without compensation for unsatisfactory performance if he did not sign the separation agreement. The Tribunal notes the manifest unlawfulness of the conditions in which the signature of the separation agreement was obtained.”

In Mmata UNDT/2010/053, the Judgment read:

“When UNICEF failed to secure his agreement to the termination of his contract by consent, pressure was applied to him to force a decision to accept severance terms by mentioning that the incident with his UNON identity card could be used against him as a charge of misconduct. “

In Kaddoura UNRWA/DT/2020/28, the Judgment read:

“The former CG caused her severe prejudice when he presented her with an offer of blackmail and bribery to coerce her into resigning; In the present case, it is apparent that the former CG offered the Applicant the option of resigning and receiving a positive recommendation instead of being terminated. If substantiated, such a practice is a blatant violation of the UN’s core values.”

In ILOAT Judgment No. 3750, 123rd Session, the Judgment read:

“By leading the complainant to believe that she had underperformed, the Global Fund abused its authority and put the complainant under unlawful pressure, which vitiated her consent in signing the separation agreement, which she did under the false impression that she had underperformed. As the offer of a PIP was unlawful, the separation agreement signed by the complainant is null and void on the grounds that she signed it under duress.”

In Soliman UNRWA/DT/2017/007, the Judgment read:

“it is unacceptable that a supervisor would agree to modify a mid-term review, which had already been submitted to the Department of Human Resources, and would promise to give a false review of the staff member’s performance to a future potential employer. An international civil servant could always apply and be selected for another post within the UN system. However, it would be against the interests of the UN if a staff member were to be selected to a post on the basis of an evaluation from a previous employer, which does not reflect the reality of the staff member’s performance.”

But the most egregious use of termination and settlement agreements are the ones that the Secretary-General uses to politely and discreetly ask senior officials to resign instead of imposing the same disciplinary threshold under chapter X of the rules, which applies to the rest of the staff.

The SG’s official spokesperson frequently uses the subtle expression “separated from the organization” in reference to senior officials fired. But were these senior officials actually fired? For the external audience, maybe. However, UN staff with access to HR data know they were not. They signed settlement agreements with the SG’s office.

The SG’s office has consistently refused to disclose the disciplinary measures applied to senior officials. These measures must be made equally public, similar to the Tribunal’s judgments, in the interest of transparency and accountability. Senior officials are not a separate staff category and are subject to the same regulations and rules.

Recently, a most ludicrous use of agreed termination has transpired in one of the organizations as reported in the OIOS audit of ESCWA report 2022/88 para 38, whereby the organization offered to staff who were about to retire a lucrative termination agreement package and where there were no criteria for the staff identified to have received such a package. 

“(b) agreed termination

ESCWA identified staff for separation on early retirement and offered agreed terminations to 13 staff members who were nearing retirement. However, there were no documented criteria for identifying candidates for termination and there was a risk that the process could be viewed as lacking objectivity.”

There goes the accountability framework for funds received from donors and member states.

The use of termination agreements in the UN and other international organizations contradicts the principles and core values the UN advocates for in its mandates.

“We The People Of The United Nations Determined

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”