Office for Students Statement of Expectations: preventing and addressing harassment and sexual misconduct in universities

In April 2021, the Office for Students (OfS) published seven “Expectations” setting out how universities should prevent and respond to incidents of harassment and sexual misconduct. These Expectations were trailed back in 2019 but consultation on them was halted due to the pandemic. At the height of the media’s focus on “Everyone’s Invited”, the OfS confirmed that these Expectations were now “in force” and universities should take steps to act on them. On 14 May 2021, the new chair of the OfS, Lord Wharton, referred to the Expectations in a speech to university leaders about his priorities for the role:

"We have set out clearly the minimum expectations that any student should have about the systems and processes that their university or college should have in place to prevent and, where necessary, respond to incidents of unlawful harassment or sexual misconduct. I know that this statement of expectations is the result of extensive consultation and urge you all to ensure that your universities comply with these expectations, as a minimum. We have seen some shocking testimony from students on the Everyone’s Invited website. It is clear that many students continue to experience harassment and assault on and around campus. This is wholly unacceptable, and so now – ahead of the new academic year – is the time to take action. We will be carefully considering the response of the sector and listening to students’ views, before looking into options for connecting the statement directly to our conditions of registration."

We think it is helpful to put these Expectations in their cultural, historical, legal and regulatory context before setting out our thoughts on how universities should address the issues raised.

Cultural context

If only based on the amount of press attention #MeToo and Everyone’s Invited have (rightly) received, it is clear that sexual harassment is something the whole of society is aware of. However, it is worthwhile looking at some of the statistics relating to students and universities based on recent studies:

• 14 per cent of female students have experienced serious physical or sexual assault and 68 per cent have been subject to verbal or physical sexual harassment.
  
  
• Whilst the initial focus of the Everyone’s Invited website was schools, more than 80 universities were mentioned by students giving specific examples of sexual harassment they had experienced at university.
  
  
• 4 in 10 students reported experiences of sexualised behaviour from staff.

In its annual report for 2020, the Office of the Independent Adjudicator (OIA) noted a gradual increase in complaints about sexual misconduct in recent years. Most of these complaints were brought by the person complaining about the unwelcome behaviour, but some were raised by those accused of misconduct.

It is unlikely that sexual harassment has suddenly increased; it is far more likely that students are no longer accepting this as part of their university experience – and nor should they.

The timeline – how we got here

"Internal action for rape and sexual assault is out of the question, regardless of whether or not the victim has any intention of reporting to the police or the preference for either party of an internal investigation."
Zellick Report, 1994

 

This out of date quote from the Zellick Report from the Council of Vice Chancellors and Principals (now Universities UK (UUK)) is pretty shocking, but when it was published in 1994 it was a key piece of guidance for higher education institutions. Clearly universities’ approach has moved on since then, but it is useful to highlight this quote to see the starting point and how much work needed to be done.

Twenty years after the Zellick Report, in 2014, the OIA noted in its annual report that it had concerns about sexual harassment and “lad culture” at universities.

In 2016, UUK published a report called Changing the Culture which was focused on violence against women, harassment and hate crime affecting university students. UUK issued a series of practical recommendations to support the implementation of a strategic framework to tackle these issues. Also in 2016, a steering group drawn from the UUK taskforce published guidance for universities on how to handle alleged student misconduct, in response to concerns about continued reliance on the Zellick guidelines.

In 2017 and 2018, UUK conducted a research study to follow up on Changing the Culture, the outcomes of which were published in 2018, and a further follow up report followed in 2019, both suggesting that progress was being made in tackling student sexual misconduct.

Then, in April of this year, the OfS published its Statement of Expectations. It provides a standard for all registered institutions requiring demonstrable commitment, engagement and a clear strategy that includes governance accountability lines, a statement of behavioural expectations and adequate staff and student training.

The legal framework

Separate to the Expectations, there is an existing legal framework which underlies the legal relationship between universities and students.

Duty of care

Duty of care is a concept derived from the law of negligence, which requires those who owe a duty to take “reasonable care”. For a university in relation to its students, this means delivering education with due care and skill and meeting the standard of a reasonable university. The standard view is that universities do have a general duty of care towards their students but that it is not as high as the equivalent duty owed, for example, by schools towards their pupils. It is also a flexible, fact-driven concept, so the general duty of care will be greater for students who are known to be less mature and more vulnerable, in particular those under 18. Paradoxically, universities who claim to protect students from sexual harassment may be held to have a higher duty of care (having assumed for themselves a greater level of responsibility). For many reasons, however, this does not mean that universities should do nothing.

Contractual duties

Like employees, students sign contracts with their universities, but they are much newer as a concept and not so standardised. Typical student contracts contain provisions beyond the basic payment of fees and provision of education. Some student contracts have provisions relating to health and wellbeing including, for example, the provision of pastoral support. These clauses may lead to contractual claims against the university, including claims that the university has failed to protect students from sexual harassment, if students believe that the university has fallen short of its contractual commitments.

The Equality Act 2010

All universities are subject to the Equality Act 2010, in their role as employers, as education providers and as qualifications bodies. The Act prohibits discrimination and harassment based on protected characteristics, including gender and sexual orientation. In addition, the Act specifically prohibits sexual harassment in the form of unwanted behaviour of a sexual nature which violates a person’s dignity, makes them feel intimidated, degraded or humiliated or creates a hostile or offensive environment.

Generally, employers are liable for acts of discrimination and harassment committed by their staff unless they can show that they have taken “all reasonable steps” to prevent those acts from taking place. In the same way, universities are at risk of a claim under the Act from their students if a staff member sexually harasses a student.

Public Sector Equality Duty

As public authorities, the governing bodies of universities are also subject to the public sector equality duty. They must have “due regard” to the need to eliminate unlawful discrimination, to advance equality of opportunity and foster good relations between people who have protected characteristics and those who do not.

Such attempts to eliminate unlawful discrimination could include steps to improve awareness of and access to education, adjusting education benefits, facilities or services to meet the particular needs of a protected group, training staff to recognise such needs and taking steps to counter sexual harassment.

The OfS regulatory framework

There is also an existing regulatory framework and so, like many sectors, the legal framework is not the end of universities’ obligations. The OfS was set up in 2017 (replacing HEFCE and the Office for Fair Access) and it is the independent regulator for English universities.

As the independent regulator in England, the OfS maintains a register of English higher education providers. In order to register, a university must demonstrate that they meet a set of initial registration conditions and will be subject to a risk assessment by OfS, which will assess the extent to which the university will be able to continue to meet their conditions. The OfS will then apply general and specific ongoing conditions to the university, based on the results of the risk assessment. These conditions are the primary tool by which the OfS will regulate individual universities.

The OfS takes a student-focused approach. Its key aims are promoting participation and enabling students of all backgrounds to receive a high-quality academic experience that enriches their lives and careers and offers value for money.

Once a university is registered, the OfS monitors ongoing compliance with the regulatory requirements. Monitoring is risk-based, with regulatory attention focused on universities that are at greatest risk of breaching their conditions of regulation. The OfS undertakes a risk assessment when a university is first registered and this assessment is updated as they receive new information gathered through routine data collection, reportable events and notifications from third parties, such as students or whistle-blowers. If the OfS is concerned then it can require further information from universities or use its formal investigatory powers, and it may put in place more frequent or more intensive monitoring requirements. It can also decide to impose one or more specific conditions of registration to mitigate the risk of a further breach of registration conditions. In more serious cases, a monetary penalty may be imposed or the OfS could suspend registration (including access to student support funding or public grant funding) or even revoke a university’s authorisation to grant degrees or use the title “university”.

The OfS doesn’t provide a route for individual student complaints – these go to the OIA, which can impose fines on universities or ask them to re-take decisions but has few other powers.

The OfS Statement of Expectations

 

"This statement of expectations provides a set of consistent recommendations to support higher education providers in England develop and implement effective systems, policies and processes to prevent and respond to incidents of harassment and sexual misconduct."
Office for Students, April 2021

 

Into this legal and regulatory framework comes the OfS Statement of Expectations. Whilst the published Statement contains only recommendations not regulatory requirements, the longer-term legal and regulatory implications of the Statement are not yet clear.

Into this legal and regulatory framework comes the OfS Statement of Expectations. Whilst the published Statement contains only recommendations not regulatory requirements, the longer-term legal and regulatory implications of the Statement are not yet clear.

What does it cover?

The Statement of Expectation applies in relation to harassment on the basis of any protected characteristic under the Equality Act 2010, and also to sexual misconduct, which goes wider:

• sexual harassment;
  
  
• sexual assault;
  
  
• rape (Sexual Offences Act 2003);
  
  
• physical unwanted sexual advances (ECHR: Sexual harassment and the law, 2017);
  
  
• intimidation, or promising resources or benefits in return for sexual favours (ECHR: Sexual harassment and the law, 2017); and
  
  
• distributing private and personal explicit images or video footage of an individual without their consent (Criminal Justice and Courts Act 2015).

What are the Expectations and what do universities have to do?

The Statement of Expectations sets out seven expectations for preventing and addressing harassment and sexual misconduct affecting students in higher education.

Expectation 1: Higher education providers should clearly communicate, and embed across their whole organisation, their approach to preventing and responding to all forms of harassment and sexual misconduct affecting students.

Amongst other things, universities should clarify and formalise the role of senior executive leadership. It will be interesting to see if in the future the current OfS requirement that universities demonstrate that they are managed by “fit and proper” persons becomes more onerous and begins to be questioned in the event of findings of bullying or harassing behaviour, as we have seen in the financial sector. We can certainly see scope for the “fit and proper” requirement to be fleshed out in higher education, and possibly to include a requirement that senior leaders and members of governing bodies display appropriate personal behaviour and, collectively, take sufficient measures to avoid or tackle a culture of harassment.

To embed a culture of tackling harassment and misconduct, there are many great examples of what universities are already doing – from publicising the work of Sexual Violence Liaison Officers to having a dedicated page on their website for sexual harassment and misconduct, signposting relevant policies and support. At a student level, this may also involve matters such as training on consent and having a very clear student code of conduct.

The Expectation will apply to behaviour between students but also to behaviour between staff and students and the relevant staff policies should be reviewed in light of the Expectations. It should go without saying that sexual harassment by a member of staff is misconduct. But it could go further. We have discussed previously the extent to which staff / student relationships should be banned (including consensual relationships) or whether staff should be able to be disciplined for inappropriate behaviour outside the workplace which is technically unrelated to their academic role but might impact on pastoral care. Each university will have to consider its own approach and rationale for policies but it is worth putting everything on the table now the OfS is highlighting these issues, and we know from the research on the first slide that staff/student relationships have the potential to be problematic.

Expectation 2: Governing bodies should ensure that the provider’s approach to harassment and sexual misconduct is adequate and effective.

The OfS puts this responsibility clearly on the most senior leadership to set up committees and working groups and it expressly references the public sector equality duty. This will impact on all staff responsibilities and conduct. Universities might consider, as some universities have already done, creating a safeguarding group with high level membership from across the institution, to raise the profile of the effort to tackle harassment and misconduct, and ensure a joined-up approach.

Student services will probably be the department with primary responsibility for collating statistics on student experience of harassment and sexual misconduct, but we suggest governing bodies should also consider staff experience of harassment and sexual misconduct – involving both students and other staff – as part of a holistic approach to this issue.

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

It goes without saying that student engagement is central to this and we agree with the OfS that this should be done by engaging with a diverse range of students to ensure that all experiences are considered and valued, and that students should be supported by trained specialists where needed.

Expectation 4: Higher education providers should implement adequate and effective staff and student training with the purpose of raising awareness of, and preventing, harassment and sexual misconduct.

We would expect HR to be involved in organising and delivering staff training, starting with an assessment of the training needs of all staff. Clearly, the type and level of training will vary depending on role. Topics might include general harassment training for staff and tailored training for managers or for staff who have a specific role in handling cases involving harassment. Clearly some areas of training will tend to fall more with HR and others (eg consent) will tend to land on student services, so a coordinated approach will be required.

Bystander initiatives and training is an area we have seen develop significantly over the past few years, with a number of universities delivering training on what to do if staff witness inappropriate behaviour.

It’s worth noting in the context of training that, as set out above, employers are liable for discriminatory acts of employees unless they can show that they have taken “all reasonable steps” to prevent those acts from taking place. This is known as the “statutory defence” provided by the Equality Act 2010, and employers will often try to rely on staff training as fulfilling the requirements of “all reasonable steps” that would allow them to escape liability for the harassment. However, in a recent case, the Tribunal and subsequently the Employment Appeal Tribunal found that the employer’s training had gone “stale” and the employer could not be considered to have taken “all reasonable steps”, as one of those steps would be to refresh the training. Regular refresher training and the development of an anti-harassment and discrimination culture amongst employees would have been more likely to satisfy the burden.

Expectation 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.

While much of this Expectation focuses on provision for students, it also requires provision of easy to understand information for staff on how they can report, disclose or seek support and advice if they experience or witness any incident of harassment and sexual misconduct, and again we would recommend a fresh review of staff policies and procedures from this perspective. They should signpost that the staff disciplinary policy will be used for allegations against members of staff.

Staff will often feel unsure of whether or how they should report incidents to the police, and guidance (including what to do if you’re not sure) can be really helpful in this respect.

Some universities have made arrangements for reports to be made anonymously, which can be helpful in encouraging disclosures but of course raises its own issues in terms of how to deal with anonymous disclosures (which is beyond the scope of this note).

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

Many universities are used to carrying out complex investigations. However, in a potentially highly charged area like sexual misconduct, particularly with the interplay between staff and student policies, it is worth being extra careful in the planning of these investigations and thinking carefully about issues such as who will be the investigator, what the scope of the investigation is, how to deal with confidentiality and the complexity of the documentary and witness evidence.

Expectation 7: Higher education providers should ensure that students have access to appropriate and effective support.

The OfS rightly makes it clear that both the reporting and the responding parties should be given adequate support and that ensuring matters are dealt with in a timely way is important. This is both to support those involved and to give confidence in the system and processes.

The OfS specifically references reporting and responding parties being provided with an outcome. This is a tricky area which often comes up if an allegation is upheld, resulting in a disciplinary process. There will be competing priorities in terms of wanting to give the victim closure and assure them that appropriate action has been taken, and the normal practice of keeping disciplinary processes and sanctions confidential. It’s interesting to note that one of the case studies on sexual misconduct in the 2020 OIA annual report flags this as a difficult issue without (unsurprisingly!) offering definitive advice. Our view would be to approach serious issues on a case by case basis, and not necessarily rule out communicating the outcome of a disciplinary process to a student who has been the victim of sexual misconduct: in some cases you may feel this is the right thing to do even if it goes against your normal practice.

What else and what next?

Increased regulatory role?

One key area to watch is whether the OfS Statement of Expectations will be incorporated into the registration requirements. If it does, there is scope for some of the OfS sanctions such as enhanced surveillance or specific registration conditions to be imposed on institutions.

References and other staff-related checks?

Safeguarding in universities may become something which is mandatory to ask, and answer, questions about in references for certain roles just as it is in other regulated sectors.

Acting on information from former students about past and present staff behaviour

As set out above, more than 80 UK universities were mentioned on the Everyone’s Invited website, and the website includes resources such as template letters to educational settings.

It looks likely that this movement will grow (as have similar initiatives in the US) and that testimonies will be added to. So, universities should remain alert to the possibility of disclosures being posted anonymously on it or receiving testimonies inspired by it but direct from a student or former student.

As we have mentioned before universities may also want to consider whether to make a report to the OfS if they are frequently named on the site or have a number of former students contacting them. As a general rule, this is not necessary as it does not fall squarely into the current OfS reportable events regime. However, it may depend on the nature of the testimony and whether the university (i) is at increased risk of breach, or has breached, any of its existing conditions of registration or whether (ii) publication on the website creates reputational risk.

Let’s see what the next academic year brings and whether the OfS has the appetite, as well as Government approval and funding, to turn this into a regulatory issue with the accompanying potentially serious consequences for universities.

If you require further information about anything covered in this briefing, please contact Kathleen Heycock, Alice Cave, 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, May 2021