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Education briefing - 1752 Group publishes research and recommendations concerning staff to student sexual harassment

  • United Kingdom
  • Education - Briefings

10-10-2018

The issue of sexual harassment continues to be a high profile one, with widespread local and national coverage across multiple sectors and jurisdictions. This has included copious discussion and analysis of the issue in the education sector.

The latest development is the publication of two new documents by the 1752 Group, a UK-based research and lobby organisation working to end sexual misconduct in higher education.

In the report “Silencing students: institutional responses to staff sexual misconduct in UK higher education” the 1752 Group explores the institutional responses to sexual misconduct carried out by academic staff in higher education, drawing on data from interviews with 16 students and early career academics across 14 UK higher education institutions. Those interviewed had reported, or attempted to report their experience of sexual misconduct from academic staff to their institution or to the police. The report also analyses 61 policies relating to staff sexual misconduct from a sample of 25 universities.

The accompanying document by the 1752 Group and law firm McAllister Olivarius “Recommendations for disciplinary processes into staff sexual misconduct in UK higher education” makes a number of recommendations with the aim of improving the fairness and transparency of disciplinary processes for dealing with staff sexual misconduct.

Although the two documents concern the higher education sector, the potential ramifications also extend to FE, or at least those colleges registered with the OfS, given that the OfS has responded to the “Silencing students” report by saying it is “important that universities and colleges put transparent measures in place which make it safe and as straightforward as possible to report sexual misconduct by staff, with policies and processes that enable an effective response”. The OfS goes on to state that where it identifies evidence of suspected systemic breaches or weaknesses in how a registered provider meets its duty of care towards its students “we will not hesitate to take action if necessary to protect students’ interests”.

A number of key legal and procedural issues arise from the recommendations which institutions will need to consider carefully when determining whether their current policies and procedures are fit-for-purpose, lawful and effective (see our conclusions below).

We highlight below the main issues to emerge from the 1752 Group’s publications.

Silencing students: institutional responses to staff sexual misconduct in UK higher education

The term ‘sexual misconduct’ is used in the report to describe a range of behaviours directed towards students including sexual harassment, assault, grooming, sexual coercion, invitations, and promises of resources in return for sexual access.

The 25 universities whose policies were analysed were not randomly selected but chosen as institutions known to have paid particular attention to their policies in recent years - either in response to negative media coverage after an allegation of sexual harassment, or because they had chosen to run a recent campaign against sexual harassment.

In the forward to the document it states that the report “provides stark evidence of students’ and early career researchers’ experiences of staff sexual misconduct and the inadequate responses received from higher education institutions”.

The interviews

According to the report, the key findings from the interviews include:

• All but four of the staff members engaging in the alleged sexual misconduct were reported by interviewees to have targeted at least one other woman

• Only one member of staff lost his job after being reported for sexual misconduct, although two resigned during the investigatory process

• Many interviewees had not reported or disclosed to anyone for months or years as they found it difficult to report sexual misconduct to their institutions. This was due to a perceived lack of clarity around what behaviours could be reported, the difficulty of finding someone within an institution who they could report to or who would act on their report, or the dynamics and impacts of sexual misconduct, which led them to doubt their experience or be too afraid to report

• Almost all the interviewees felt they had been blocked or dissuaded from reporting in some way, with the result that 6 interviewees had made no formal report to their institution or to the police

• There were a variety of ways in which interviewees criticised the adequacy of the investigations, including a perceived lack of expertise among investigators or decision-makers around sexual violence and a lack of communication and support from the institution to the complainant

• Five interviewees described retaliation from the staff member and his supporters in the aftermath of reporting to the institution, including the spreading of malicious rumours about the interviewee among other staff members or the student’s collaborators or colleagues; academic retaliation, such as loss of teaching or authorship and threats to their physical safety

The policies

The analysis of policies considered conflict of interest policies relating to staff-student relationships and the sections of sexual harassment policies dealing with staff-to-student sexual harassment

On the conflict of interest policies the report found that:

• Most stated that personal relationships between a staff member and a student with whom they have any academic, administrative or advisory responsibility should be disclosed to the relevant head of department or manager. However, it was rare for policies to include a reference to disciplinary action should this fail to be carried out

• Very few of the policies discussed the issue of consent within an unequal power relationship

• Only one policy in the sample prohibited staff from entering into personal relationships with students with whom they have a professional relationship

• Four policies included variations on the wording that the university relies upon the integrity of both parties to ensure that abuses of power do not occur - the report views this as “highly problematic” as it believes this suggests that it is a student’s responsibility to avoid abuse of power perpetrated by a member of staff

In relation to the sexual harassment policies it found that:

• There was considerable variation in the amount of procedural information provided in university policies

• Four policies included information on submitting anonymous reports, which would assist students who might not want to be named

• Only one policy mentioned that students might be able to access some form of legal representation, and this was provided on a voluntary basis by law students

Recommendations

Finally, the report contains a number of recommendations for institutions and the sector. These include:

• Sexual harassment policies should include a statement encouraging staff or students to report any behaviour that has caused them distress, regardless of doubts about whether it meets an exact definition of sexual harassment

• Such policies should include a breakdown of all the processes that will be adhered to following any report or complaint of sexual harassment

• Staff-student relationship policies/conflict of interest policies should include a mandatory requirement for staff to disclose any personal relationships with students irrespective of whether they have a professional responsibility for that student and state that failure to do so will result in disciplinary action

• An overview of relevant policies should be covered in the induction processes for new students

• Higher education institutions should explicitly include sexual misconduct and all forms of bullying and harassment within the definition of research misconduct

• Higher education institutions should urgently improve their internal investigations processes, following guidelines developed by The 1752 Group and McAllister Olivarius (see below)

• Informal resolution should only be pursued with the permission of all complainants

• Mediation or informal approaches are unlikely to be appropriate for cases of staff sexual misconduct

• Settlements of ongoing complaints must only be made with the permission of all witnesses and complainants

• There should be mandatory training for all students and staff members on recognising different forms of sexual misconduct and learning how to raise concerns

• Support and advocacy should be available within and outside of the institution for students and staff who report staff sexual misconduct

• The OIA should be able to enforce time limits for the total period within which an HE institution must address a complaint from the date of first disclosure, with the first round of formal complaints processes being addressed within six months and the full complaints process including appeal taking no longer than a year

• After a year students should be allowed to proceed to the OIA, regardless of whether they have an end-of-process letter

• The OfS should be able to sanction universities who do not adequately deal with reports of staff sexual misconduct

• The OfS and/or students’ unions should provide a legal fund for students to access independent legal advice

The 1752 Group and McAllister Olivarius recommendations for disciplinary processes into staff sexual misconduct in UK higher education

This is expressed to be a consultation document that will be amended in response to input from invited sector bodies and experts, with the aim of producing guidelines to ensure a fair and transparent disciplinary process for dealing with staff sexual misconduct.

The recommendations are broken down into 8 areas which we set out below together with a number of the recommendations under each heading.

Initial submission of complaint and risk assessment

There should be a named, trained and clearly signposted first point of contact. All members of the university need to be aware of who they should contact if they receive a report or disclosure of staff sexual misconduct. This person should be the safeguarding lead or report directly to them.

There must be clear ownership for informing, supporting and regularly updating complainants of the progress of any process. This includes that:

• There must be one point of contact for the disciplinary process within each university whose responsibility is to keep student complainants well updated. This person should sit within student services, with close links with HR, and reporting to the safeguarding lead

• A clear timeline should be given to all parties at the start of the complaints process. It is suggested that an appropriate timeline would be four weeks for investigation and report; four weeks from the investigation report to the hearing of the complaint; one week to issue the written outcome decision; one week for parties to seek a review of the decision; four weeks to reach final review decision and two weeks for the implementation of final action

• The complainant should be provided with an advocate who has expertise in the investigatory/disciplinary process, and also has a high level of training in supporting survivors of sexual violence and sexual harassment. The recommendation is that this should draw on the model of Independent Sexual Violence Advisors (who support witnesses through the criminal justice system) and should be funded by the institution

There should be no time limit for making a report of sexual misconduct, or restriction on who can make a report - the policy should not include a time period within which a complaint can be made internally to the university, but should make it clear that there are legal avenues of redress which do have deadlines, sometimes as short as three months from the date of the last incident complained of.

In addition universities should have a duty to fully investigate evidence whether historical or current; that complaints made by alumni about members of staff who are still in post should be dealt with in the same way as complaints by current students and that if a complainant does not want to go forward at the time, their report/disclosure should be kept on file, so that they can be contacted if further reports/disclosures are made.

Policies must not require or pressure complainants to go through mediation in order to make a formal complaint.

A safeguarding risk assessment should be carried out immediately after a complaint is received to decide if safeguarding measures should be put in place, including suspension of the staff member or contact restrictions.

Third party and anonymous reporting

Third party and anonymous reports should be part of the reporting system of an institution and have the power to trigger an investigation. In this context, third party reporting refers to reports by members of the university community or people connected to the university community, about sexual misconduct they have witnessed or been told about, whereas anonymous reporting refers to reports that are made without a named complainant.

The investigation

A number of recommendations are made in relation to this important procedural stage, including that:

• Investigations into staff-student sexual misconduct should be carried out by an independent investigator from outside the university, given the time constraints, as well as the impartiality and expertise that is required. Universities UK or the OfS should provide a list of recommended independent investigators, who have appropriate training and experience in working with survivors of sexual misconduct, for universities to draw on

• The investigator should define the issues to be investigated and the range of outcomes and meet with the complainant to agree these at the outset

• The investigation should be proportionate and the investigator should try to minimise the number of interviews or communications with each witness (including the complainant), in order to minimise trauma and inconvenience, subject to seeking the most complete evidence available

• The investigation report should set out the evidence reviewed and conclusions drawn with reasons and recommendations

• The complainant and the staff member should both receive copies of the investigation report and the relevant evidence

Action on the investigation: the complaints-handling procedure

Following the investigation, the report should be submitted to a panel for final determination.

Panels should be independent and fairly constituted, for example with a gender balance and vetted for conflicts of interest and should include an independent union representative, a member of HR and a member of academic staff senior to the subject of the complaint (or as senior in cases where it is not possible to find a more senior member).

If a hearing is held, the complainant should not be required to be in the same room or be questioned by the subject of the complaint. Instead questions from either party for the other, or for any witness, should be submitted to the panel in advance, who will carry out the questioning at the hearing.

The final outcome should be written and provided to the complainant and subject of the complaint along with notification of the right to go to the review stage; the grounds to seek a review; the review procedure and where and how to access support, both within and outside of the university.

Where the complaint is resolved or the process is ended at this stage, the institution should provide a Completion of Procedures Letter to the student complainant and explanation of legal rights to both parties, as well as information on the Office for the Independent Adjudicator for Higher Education.

The review process

Where the review process is triggered, an independent panel should be allocated to the review. This panel may include members from within the university but should not be from the same department as the staff member or student.

The parameters of the review must be clearly explained to the complainant and subject of the

complaint and the procedures should set out whether the reviewer can overturn the previous outcome and substitute a new decision, or simply refer the process back to the formal stage for reconsideration.

The outcome must be communicated in writing to the complainant and subject of the complaint

within 28 days of instigation of the review, with a Completion of Procedures letter for a student

complainant and explanation of legal rights to both parties.

Vice Chancellor/Head of Institution approval

Where the final outcome or review decision upholds the complaint and recommends disciplinary action, this must be passed to the Vice Chancellor/HoI for approval and ratification, variation or rejection. The Vice Chancellor’s/HoI’s actions on the decision, along with reasons for that action, must be recorded with the safeguarding lead and HR, and notified to the subject of the complaint and the complainant. If any recommended disciplinary action is rejected or amended, this should be made public and open to legal challenge and judicial review.

Confidentiality of outcomes

It is recommended that outcomes and disciplinary sanctions should be shared with the complainant and there should be further consideration of how and whether such outcomes could be made public.

In addition it is suggested that references for a staff member leaving during an investigation must include the outcome of any investigation and/or existence of pending investigations.

Data recording and management

Finally it is recommended that data relating to all formal and review stages must be recorded centrally within the institution with identifying details removed and that data on numbers of complaints, and non-identifying outcomes of complaints per faculty and per institution should be provided to the OfS and published annually.

Conclusions

The recommendations in these two documents are wide-ranging and, although based on a relatively small sample of interviews and policies, identify issues in relation to policy and practice that will be familiar across the sector.

Amongst the more interesting recommendations are that the process from start to finish should take about 16 weeks; there should be a trade union representative on the panel determining the complaint; both the complainant and the subject matter of the complaint should have the opportunity to trigger a review of the outcome of the decision; and that details of any disciplinary sanctions should be shared with the complainant.

As mentioned, a number of key legal and procedural issues arise from the recommendations which institutions will need to consider carefully when determining whether their current policies and procedures are fit-for-purpose, lawful and effective. These include not only an institution’s particular culture and student/staff demographic and dynamic, but also privacy issues arising from data protection and human rights legislation, equality obligations and (for non-private institutions) the public sector equality duty, the interplay between staff and student processes, student mental health strategies, and student contract and duty of care issues. Institutions would be well advised (if they have not already done so) to review their policies and procedures dealing with sexual harassment. The focus of the 1752 Group in these documents is on allegations by students against staff, but it would make sense for reviews to also include policies (to the extent they are different) relating to allegations brought by members of staff.

The recommendations challenge established practice but also need to be considered in the context of legal obligations owed to both complainants/victims and alleged perpetrators – including contractual obligations, statutory obligations such as unfair dismissal rights, and data protection obligations (particularly in respect of the handling of criminal offences data post GDPR). Institutions will need to seek specialist legal advice on proposed reforms to their practices and procedures and their fair and lawful implementation, to understand the relevant legal framework and how competing legal obligations can be most effectively resolved.

Please contact us for more information on how we can support institutions in managing sexual harassment complaints and making sure their policies are fit for purpose and details of the in-house training we can offer.

For more information contact

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