Office for Students’ new registration condition on harassment and sexual misconduct

The Office for Students (OfS) has announced its long-awaited new condition of registration on harassment and sexual misconduct, which will come into force for universities in England on 1 August 2025. There is a long backstory. While the OfS previously encouraged universities to address concerns about harassment and sexual misconduct through effective self-regulation, the new condition signals a more interventionist strategy. In this article, we take a look at five elements of the new condition.

(1) Single comprehensive source of information

Universities must maintain a “single comprehensive source of information” (CSI) which sets out their policies and procedures in this area. There are “minimum content requirements”, ie a prescribed list of the minimum information which must be set out. There are also “prominence principles”, ie rules about how information should be readily accessible.

During the consultation stage, there were fears that universities would be required to set out their policies and procedures within a single document, which would have been lengthy and unwieldy. In the end, the requirement is for a single source, which could be a webpage that links to additional documents (provided that the webpage summarises the content to be found by following those links). To some extent, therefore, this may not involve a major overhaul but rather a tidying up and signposting of relevant documents in one place.

The condition expressly states that universities must operate in accordance with and comply with the CSI. Now is the time for universities to review their policies and update anything which might create hostages to fortune. This includes, for example, any unrealistic timeframes in internal processes which are rarely adhered to in practice, or a blanket requirement to allow cross-examination of witnesses which might not be appropriate without more in the case of vulnerable individuals. Universities should balance the importance of having clear and robust processes with the need to retain sufficient flexibility to adapt those processes in the circumstances of any particular case.

(2) Protecting students and ensuring fair processes

That said, the condition is about much more than window-dressing. Among other things, the CSI (which universities must comply with) must set out:

• “… multiple steps 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, including, but not limited to, steps that may reduce the likelihood of harassment and/or sexual misconduct taking place”. In the accompanying guidance, the OfS makes clear that working out which steps could make a significant and credible difference will need to be informed by the context of each university and the nature and severity of the issues faced by its students, meaning that universities will need to engage with their student population.
• “… how the provider ensures that investigations undertaken and decisions made in respect of incidents of harassment and/or sexual misconduct are credible, fair and otherwise reflect established principles of natural justice”. Universities must ensure that their investigation and decision-making processes comply with these requirements.
  
  

(3) Standardised definitions

The condition introduces standardised definitions of “harassment” and “sexual misconduct”:

• “Harassment” has the meaning given in section 26 of the Equality Act 2010 (EqA) and section 1 of the Protection from Harassment Act 1997 (PHA).
• “Sexual misconduct” means any unwanted or attempted unwanted conduct of a sexual nature and includes but is not limited to sexual harassment, sexual assault, and rape.
  
  

We hope this will provide welcome clarity and consistency in the sector. Clear definitions are the cornerstone of any policy related to expected standards of behaviour for staff and students and the management of potential breaches.

The OfS explains that this does not create a requirement for universities to use a criminal standard of proof in internal investigations, and that universities should make clear to students and staff that any judgments reached as part of an investigation do not constitute a legal ruling on whether or not criminal activity has taken place. This is a helpful reminder that a university’s remit is limited to addressing potential breaches of university policy.

(4) Staff and student training

In the case of both staff and students, there are requirements to ensure that they understand the content of the CSI and, in particular, that they understand what behaviour may constitute harassment and/or sexual misconduct. Staff must also have the required knowledge and skills to undertake investigations or make decisions in relation to incidents of harassment and/or sexual misconduct.

In our experience, misunderstandings in this area are common. For example, one frequent misconception is that the alleged perpetrator must have intended their conduct to have an effect on the alleged victim in order for it to constitute harassment, which can lead to an overemphasis on the alleged perpetrator’s evidence about what they meant. By relying on the EqA and PHA definitions of harassment, the OfS explains that there is an objective element to the test. It states that these objective tests are of particular importance in a higher education context where universities may face pressure to curtail speech that is lawful, but which is perceived as offensive towards a particular person or group of persons.

(5) Regulating staff/student relationships

Universities must take one or more steps which could (individually or in combination) “make a significant and credible difference in protecting students from any actual or potential conflict of interest and/or abuse of power”. Universities have discretion to decide what is appropriate in their context. The condition provides that:

• “… a ban on intimate personal relationships is deemed to be a step which could make a significant and credible difference in protecting students” (and in this context relevant staff members are those with direct academic responsibilities, or other direct professional responsibilities, in relation to the student), and
• “… a statement made by the provider to the effect that it disapproves of and/or discourages intimate personal relationships between staff and students may contribute to compliance but will not individually be treated as a step which could make a significant and credible difference in protecting students”.
  
  

There is a balancing exercise between protecting students from harmful behaviour and protecting personal freedom. On the one hand, there is an inherent power imbalance in staff/student relationships. Staff can have an actual or perceived influence over a student’s academic career. Relationships in which one party holds a position of power over the other carry a higher risk of ending in abuse, especially when there is a significant age gap and/or one party is vulnerable. On the other hand, any policy on relationships can limit personal freedom and not all staff/student relationships are, or become, problematic.

On an individual case-by-case basis context is everything, but universities cannot legislate for every conceivable scenario. What universities can do is exercise a judgment about the appropriate way to balance the known risks and to set a policy which supports the culture it aims to achieve.

What should universities be doing now?

The OfS has given universities an academic year to prepare for the new condition. The work to be conducted will differ from university to university. We recommend that universities start by conducting an audit of their current policies and practices and recent cases (to identify any trends or risk areas), and establish areas that need to be adapted or improved to ensure compliance with the new condition, as well as identifying who will be responsible for implementing those changes.

We consider it critical that a “whole institution” approach is taken in this area, not least because many of the requirements of the condition relate specifically to staff as well as students. We recommend that universities engage with stakeholders from across the university, including students, staff, unions, student services, HR and senior leaders.

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

© Farrer & Co LLP, September 2024