Education briefing - Office for Students launches consultation on tackling harassment and sexual misconduct

• United Kingdom

• Education - Briefings

03-03-2023

On 23 February 2023, the Office for Students (OfS) launched its “Consultation on a new approach to regulating harassment and sexual misconduct in English higher education” which can be found here.

The OfS consultation runs until 4 May 2023, with a summary of responses to be published “later in 2023”. Subject to the responses to this consultation, the new condition of registration proposed by OfS would come into force on a date no sooner than three months after the OfS publishes its final decisions.

In this briefing, we set out a summary of key points and then consider the various elements in more detail.

Background

On 12 October 2022 the OfS announced its intention to consult in early 2023 on a new condition of registration to place requirements on registered higher education providers to address harassment and sexual misconduct, with the aim of any new regulatory requirements being in place before the start of the 2023/24 academic year.

This announcement followed on from the “statement of expectations” published in April 2021 - this provided a set of recommendations to support higher education providers in England to develop and implement effective systems, policies and processes to prevent and respond to incidents of harassment and sexual misconduct.

An independent evaluation of the statement of expectations published in November 2022 found that the statement has led to improvements in providers’ policies, systems and processes, and increased attention to addressing harassment and sexual misconduct, particularly from senior leadership teams and governing bodies. However, the evaluation also found that progress has been slow and inconsistent across the sector, and that further regulatory intervention would be needed to ensure providers address these issues appropriately.

Key points

The core proposal now made by the OfS is to impose a new ongoing condition of registration on registered providers in relation to harassment and sexual misconduct which would, among other things:

• provide “clear definitions of harassment and sexual misconduct” to support consistency across the sector

• require each registered provider to create and publish a single document explaining:

the steps it will take to protect students from harassment and sexual misconduct

its arrangements for handling incidents of harassment or sexual misconduct

the support it will provide to those involved in incidents

the training that it will provide to all students and all staff about what constitutes harassment and sexual misconduct and, in the case of staff, on how to handle disclosures, formal reports, and investigations

• require each registered university and college to have the capacity and resources to deliver everything required by the proposed condition

• ensure freedom of speech and academic freedom are protected, by requiring universities and colleges to continue to meet their legal and regulatory obligations in relation to both freedom of speech and harassment

• prohibit non-disclosure agreements that forbid students from talking about incidents of harassment or sexual misconduct that they may have experienced

• place regulatory requirements on registered providers in relation to personal relationships between students and relevant staff (for example, those involved in teaching students or marking their work). Two alternative options are proposed here:

requiring such relationships to be reported (their preferred option) and a register of relationships maintained, or

a ban on relationships between students and relevant staff members

Proposal A: Introduce proposed ongoing condition E6 (harassment and sexual misconduct)

This would be a new general ongoing condition of registration specifically focused on tackling harassment and sexual misconduct, which would apply to all registered providers.

The OfS considers it appropriate to impose new regulatory requirements on registered providers in relation to harassment and sexual misconduct because the impact evaluation of the statement of expectations has shown that the existing approach of providing funding, sharing effective practice and introducing a voluntary statement of expectations, has not achieved sufficient progress across the sector.

The condition as proposed will apply to incidents of harassment and/or sexual misconduct which in any way involve or affect one or more students on higher education courses, however these courses are delivered by or on behalf of the provider (including, for example where a provider is responsible only for granting awards for students registered with another provider).

The proposed condition would define:

• “harassment” as having the meaning given in section 26 of the Equality Act 2010 and section 1 of the Protection from Harassment Act 1997, and

• “sexual misconduct” as any unwanted or attempted unwanted conduct of a sexual nature. This includes (but is not limited to) (1) sexual harassment as defined by section 26(2) of the Equality Act 2010; (2) assault as defined by the Sexual Offences Act 2003; and (3) rape as defined by the Sexual Offences Act 2003

For now, the OfS does not intend to include domestic abuse within the scope of the new regulatory regime.

The consultation welcomes comments from respondents about these proposed definitions, including whether they provide appropriate clarity about the scope of activity that is intended to be covered.

Proposal B: Proposal to require a provider to develop and publish a single document with minimum content requirements

Registered providers would be required to create a single document which comprehensively sets out its policies and procedures relating to incidents of harassment and sexual misconduct.

If a provider did not have such policies and procedures when any new condition was imposed, it would need to develop these. Providers which have such documents already would need to review them to ensure that they meet the proposed requirements and to present them in a single document.

The single document should be published in a prominent position on a provider’s website that is publicly and easily accessible - it should not be behind a password-protected section of the provider’s website, or located several ‘clicks’ behind the main page.

The document should be shared with registered students and staff at least once a year, and should be referenced in other key documents and policies such as in a prospectus, other information published for applicants and in documents about the provider’s overall approach to student support.

 The proposed minimum content of this single document is “comprehensive and easy to understand” provisions covering the following:

• The steps which the provider will take to protect students from harassment and sexual misconduct. Providers would need to set out multiple steps they will take which could (individually or in combination) make a significant and credible difference in protecting students from behaviour that may amount to harassment and/or sexual misconduct. This would include steps that may reduce the likelihood of harassment and/or sexual misconduct taking place. The sort of steps which the OfS suggest might be included here are:

considering the potential needs of different groups of students, including those with needs affected by a student’s protected characteristics - this may include, for example, working with  students and their representatives when a provider develops its policies and procedures and inviting students to provide feedback on the likely significance and credibility of the difference the steps a provider proposes to take will make in protecting students from behaviour that may amount to harassment and/or sexual misconduct

collecting, monitoring and publishing data, including data relating to the prevalence of harassment and/or sexual misconduct affecting students and data about reporting - such as the number and type of incidents reported to the provider, how many of these lead to an investigation, and the outcomes from incidents and investigations

undertaking credible and evidenc e-based evaluation of the effectiveness of the steps it is taking and reviewing and adjusting its approach as appropriate

• the ways in which students, staff and other persons are able to report behaviour that may amount to harassment and/or sexual misconduct to the provider

• how information received or obtained will be handled sensitively and used fairly

• how the provider ensures that students are appropriately taught (ie about these issues - see below for more detail)

• the support that will be provided to students (including, but not limited to, actual or potential victims and actual or alleged perpetrators) in response to incidents of harassment and/or sexual misconduct – this could include personal support (eg counselling) and academic support

• how the provider ensures that staff and other persons responsible for receiving information about, investigating, or taking decisions on, matters relating to incidents of harassment and/or sexual misconduct are appropriately trained (see below for more detail)

• how the provider ensures that investigations undertaken and decisions made are credible, fair and otherwise reflect established principles of natural justice

• how the provider ensures that persons directly affected by any decisions made are directly informed about the decisions and the reasons for them. The consultation sets out the OfS’ view that all individuals involved in an incident of potential harassment or sexual misconduct should be able to be made aware of the outcome of any investigation or decision making process

Very importantly, providers will be required to comply with the content of their “single document” – the OfS recognises that this cannot just be an aspirational document or a tick box exercise, but something which is actually put into practice.

In relation to the condition that students are “appropriately taught”, the definitions section of the condition says that this includes, but is not limited to ensuring that students understand the content of the “single document” when they register at the start of each year of study; and that induction sessions for new students contain training to ensure they understand behaviour that may constitute harassment and/or sexual misconduct.

 In relation to staff to being “appropriately trained”, this would mean that staff have and maintain:

• an up-to-date understanding of the content of the “single document”

• an up-to-date understanding of behaviour that may constitute harassment and/or sexual misconduct

• the required knowledge and skills to support students who wish to make allegations or complaints about harassment and/or sexual misconduct; are the actual or potential victims of incidents of harassment and/or sexual misconduct; and are the actual or alleged perpetrators of incidents of harassment and/or sexual misconduct

• the required knowledge and skills to undertake investigations or make decisions in relation to incidents of harassment and/or sexual misconduct

 Further guidance in the consultation gives the following non-exhaustive examples of how a provider may demonstrate that it has complied with the training requirements:

• mandatory training is delivered for all students - as is training for potential witnesses of sexual misconduct (bystander training), and training on sexual consent

• mandatory specialist training is delivered for staff likely to be involved in receiving disclosures about incidents of harassment and/or sexual misconduct, undertaking investigations, and making decisions about disciplinary cases

• mandatory training in relation to the freedom of speech principles set out in the condition (see proposal D below) is delivered to ensure that staff have a proper understanding

• any training is underpinned by credible evidence, and its effectiveness is evaluated

• any training is designed and delivered by persons with credible and demonstrable expertise

Proposal C: Requirements relating to capacity and resources

This part of the proposal seeks to ensure that a provider allocates appropriate resources to addressing harassment and sexual misconduct. Relevant factors would include, but not be limited to, the financial resources of the provider; the number, expertise, and experience of the staff employed or contracted by the provider; and the resources deployed by the provider to undertake investigations or make decisions in relation to incidents of harassment and/or sexual misconduct.

The consultation says that whilst a provider will be required to have sufficient capacity and resources to ensure compliance with the condition in respect of all students, it may be appropriate for resources to be allocated in particular to certain student groups which are more likely to face harassment and sexual misconduct or which may require additional support to continue their studies successfully.

So, for example, it may be appropriate for a provider to allocate additional resources to meet the proposed requirements by taking into account the number of students registered with the provider; the demographic characteristics of a provider’s student population, including students with particular protected characteristics; students with different modes of study or at different levels of study and the prevalence and types of incidents being reported and how these affect students differently.

A provider with higher prevalence rates of harassment and/or sexual misconduct would be expected to ensure that it has more capacity, and to deploy more resources, to comply with this condition than a provider with lower prevalence rates.

Proposal D: Requirements relating to freedom of speech

This would require providers to comply with the requirements of the condition in a manner which is consistent with the freedom of speech principles.

The OfS considers that there is a possible risk that some providers may interpret the proposed requirements in relation to harassment and sexual misconduct too broadly and take actions that restrict free speech, for example, by applying an overly broad definition of ‘harassment’.

Therefore it proposes that there is a rebuttable presumption which would require a provider to assume that the exposure of students to course materials (including but not limited to books, videos, sound recordings, and pictures) and statements made and views expressed by a person as part of teaching, research or discussions about any subject matter which is connected with the content of a higher education course, are unlikely to constitute harassment, unless otherwise demonstrated that these matters do in fact amount to harassment.

It also reminds providers of the need to have particular regard to, and place significant weight on, the importance of freedom of speech within the law, academic freedom and tolerance for controversial views in an educational context or environment.

The OfS says that in formulating its proposals it has considered the potential implications of the Higher Education (Freedom of Speech) Bill. Although it does not think that there is any content in the proposed condition that conflicts with the Bill, or would be difficult to implement if the Bill were passed in its current form, it says it will consider any legislation in place when it makes the final decisions following the consultation.

Proposal E: Requirements relating to restricting the disclosure of information

This would prohibit any contractual provisions that prevent or restrict someone from disclosing information about an allegation of harassment or sexual misconduct which affects one or more students. It would also impact pre-existing confidentiality agreements.

The OfS proposes the following in relation to non-disclosure agreements/confidentiality provisions:

• prohibiting a provider from preventing or restricting, through contractual arrangements, any person from disclosing to any other person information about such an allegation

• prohibiting a provider from relying on or enforcing any pre-existing non-disclosure agreements that cover such issues – this would prevent a provider from relying on any such existing provisions from the date that the proposed condition comes into effect

• requiring a provider to take all reasonable steps to prevent any other person from entering into contracts that prevent or restrict any person from disclosing information about such an allegation - this is to address the possibility that another organisation or third party could be involved in handling an incident of harassment or sexual misconduct, for example if a student is studying on a work placement

• requiring a provider to take all reasonable steps to prevent any other person from relying on or enforcing an agreement that is already be in place

It is made clear that these provisions are intentionally expressed broadly, as the OfS’ view is that it is unacceptable for any student to be prevented from discussing their experiences of harassment or sexual misconduct.

Proposal F: Requirements relating to personal relationships between staff and students

Two options are proposed.

Option A (which is the OfS preferred option) is that the provider must take all reasonable steps to:

• require any relevant staff member to disclose any personal relationship that the relevant staff member has with any student (including the nature of that personal relationship)

• maintain a register of any such personal relationships that exist between a relevant staff member and a student (including the nature of any such personal relationships)

• in respect of such a personal relationship, manage and address any actual or potential conflict of interest and/or abuse of power

The reasonable steps a provider must take would include, but not be limited to, putting in place appropriate contractual arrangements and enforcing any breaches of those contractual arrangements and where, after the provider has taken other steps to secure compliance, the staff member refuses to disclose any personal relationship they have with any student, terminating that member of staff’s employment.

Relevant staff member means a member of staff who has direct or indirect academic responsibilities, or other direct professional responsibilities in relation to that student. Further guidance provided by the consultation states that ‘academic responsibilities’ includes, but is not limited to, teaching, supervision, and assessment and ‘other direct professional responsibilities’ is intended to capture staff with a direct professional or pastoral responsibility for a student, such as mental health advisers, staff operating student complaint processes, and security personnel.

Personal relationship means a relationship that involves one or more of (1) physical intimacy including isolated or repeated sexual activity; (2) romantic or emotional intimacy; and/or (3) financial dependency.

Option B is that the provider must take all reasonable steps to:

• prohibit any relevant staff member from having a personal relationship with one or more students

• take appropriate steps, which would normally be dismissal of the relevant staff member, in circumstances where they refuse to end a personal relationship

There would be an exemption where a relevant staff member has a personal relationship with a student by virtue of a marriage or civil partnership that existed before the date the condition comes into force and that remains in existence.

In summary, Option B is a straight ban whereas Option A would permit such relationships but with a requirement that they be disclosed and an obligation on the provider to take steps to manage the consequences of the relationship.

Comment

The introduction of an ongoing condition of registration in this area is clearly a very significant development and one that all registered providers will need to prepare for thoroughly. The OfS is sending a very clear signal that the pace and effectiveness of action across the sector in preventing, tackling and responding to harassment and sexual misconduct needs to increase.

The proposed new condition is very wide ranging, both in scope and in its various elements. It is notable that the OfS stress the importance of tackling not only sexual harassment/misconduct but all forms of harassment which students may encounter. The consultation also recognises the interface between alleged harassment and freedom of speech, and will require HEPs to be proactive in explaining and determining the boundaries between the two. To some extent this adds additional regulatory conditions to existing free speech obligations.

The critical takeaway is that registered providers will be held to account against the content of their “single document”, so this will need to be well thought through, realistic and deliverable. The requirement to have capacity and resources to comply with the condition of registration is also a key development and may create considerable challenge, especially in relation to the capacity to undertake timely investigations.

There is a great deal here for HEPs to consider, both in their responses to the consultation questions and in preparing for the new condition of registration. We would be happy to discuss how we can support with this.