The OfS consults on harassment and sexual misconduct in higher education

In view of the ongoing problem of harassment and sexual misconduct affecting students, the Office for Students (OfS) has published a consultation setting out its proposals to regulate higher education providers on this issue. Drawing on work by other entities, it has drawn up a list of its expectations of providers. The aim is to ensure that students know how to report incidents of harassment and sexual misconduct, feel confident and supported in reporting incidents, and know that their complaints will be addressed effectively.

What should universities do?

1. Read the consultation document! We have summarised it below as a quick introduction, but it is not a difficult read and it is worth understanding the rationale behind it.

2. Consider whether to respond. The deadline is 27 March and if you have strong views or examples of best practice, why not share them with the OfS and be part of the process. However, be aware that the information provided may be subject to FOI and DPA so you should expressly state if you want anything you submit to be confidential.

3. Prepare, particularly in light of statements of expectations 5, 6 and 7, by reviewing your existing policies and procedures to see how they would stand up to scrutiny. There is likely to be a fairly short timeframe for complying so planning ahead will stand you in good stead.

4. Comply once the final version is implemented.

5. Wait to see if you are called for evidence in the two-year period following implementation.

We set out further detail on the consultation below.

What are "harassment" and "sexual misconduct", and who are providers responsible for protecting?

There are full definitions of "harassment" and "sexual misconduct" on page 8 of the consultation paper. Essentially, harassment means "unwanted behaviour or conduct which makes a person(s) feel offended, intimidated or humiliated if it occurs because of, or connected to" certain of the protected characteristics in the Equality Act 2010 [1]. Sexual misconduct includes "all unwanted conduct of a sexual nature". Both definitions encompass behaviour conducted through any medium, such as online.

It is worth noting that a provider's responsibility does not only extend to students attending courses on university premises. It includes those studying by distance learning, students on placements and overseas courses, and students who are registered with institutions that are delivering courses for it under a sub-contracting arrangement. Because it is the OfS that is publishing this consultation, its focus is on protecting students, but the consultation paper says that the OfS expects providers to take a similar approach to protecting staff and visitors.

The statement of expectations

The statement consists of seven paragraphs, with explanations underneath setting out what the OfS expects of providers in relation to each one. The headline statements are:

1. Higher education providers should clearly communicate, and embed across the whole organisation, their approach to preventing and responding to all forms of harassment and sexual misconduct. They should set out clearly the expectations that they have of students, staff and visitors.

2. Governing bodies should ensure that the provider's approach to harassment and sexual misconduct is adequate and effective. They should ensure that risks relating to these issues are identified and effectively mitigated.

3. Higher education providers should engage with students to develop systems, policies and processes to address harassment and sexual misconduct.

4. Higher education providers should implement adequate and effective staff and student training to raise awareness of, and prevent, harassment and sexual misconduct.

5. Higher education providers should have adequate and effective policies and processes in place for all students to report and disclose incidents of harassment and sexual misconduct.

6. Higher education providers should have a fair, clear and accessible approach to taking action in response to reports and disclosures.

7. Higher education providers should ensure that students involved in an investigatory process have access to appropriate and effective support.

How does the statement of expectations fit with the conditions of registration?

The OfS does not believe it needs to add to the conditions of registration, taking the view that failure to provide a robust and effective complaints handling mechanism for harassment and sexual misconduct cases could represent a breach of conditions B2 (Quality) and C1 (Guidance on consumer protection law).

Condition B2 requires institutions to "provide all students, from admission through to completion, with the support that they need to succeed in and benefit from higher education", with one indicator of compliance being that "the provider has fair and transparent procedures for handling complaints and appeals which are accessible to all students". In assessing this condition, the OfS will have regard to paragraphs 5, 6 and 7 of the statement of expectations, though the consultation paper points out that non-compliance with one of those paragraphs will not necessarily amount to a breach of condition B2.

Condition C1 states: "The provider must demonstrate that in developing and implementing its policies, procedures and terms and conditions it has given due regard to relevant guidance about how to comply with consumer protection law". The relevant guidance referred to is produced by the Competition and Markets Authority. Among other things, this describes the way providers should deal with student complaints, such as by having clear timescales and by ensuring that staff are trained in (and follow) complaints handling procedures. Many of the points in the guidance line up with paragraphs 5, 6 and 7 of the statement of expectations so, as with condition B2, the OfS will take those paragraphs into account when assessing compliance with condition C1. Again, a failure on one point will not necessarily constitute a breach of the condition.

In Appendix A, the consultation paper mentions that other conditions of registration may be relevant:

• Conditions A1 (access and participation plan) and B3 (delivering successful outcomes for students) could be involved if harassment and sexual misconduct are linked to poor outcomes for students with particular characteristics;
  
  
• Condition C2 (Student complaints scheme – the OIA) could be engaged if reports of harassment or sexual misconduct raise concerns that, for example, students have not been made aware of the OIA's scheme;
  
  
• Inadequate handling of harassment and sexual misconduct issues could be relevant to compliance with Condition E2 (management and governance).

Monitoring

Primarily, the OfS envisages obtaining information from (1) students or their representatives, (2) reportable events from providers, and (3) other regulators, particularly the OIA. The good news for university administrators is that the OfS will not be asking providers for more paperwork, unless specifically requested as part of its monitoring and intervention work. If it does identify an increased risk of a future breach of the conditions of registration, it will use the powers in its regulatory framework and associated guidance.

Next steps

The consultation ends on 27 March. The OfS intends publishing a summary of responses in the summer and, although it will take account of consultation responses, it plans for the proposals to take effect from that time. The OfS will work with the sector to promote the statement of expectations and plans to evaluate its within two years of publishing the finalised version, to consider whether it needs to be amended and whether further regulatory intervention is needed.

You can read the consultation paper here.

[1] The relevant characteristics are: age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.

If you require further information about anything covered in this briefing, please contact Kathleen Heycock or Rachel Holmes, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2020