A new approach to preventing harassment and sexual misconduct in higher education

This follows the OfS’s publication of a Statement of Expectations in April 2021, which set out seven informal, unenforceable expectations for how higher education providers should prevent and respond to incidents of harassment and sexual misconduct in their institutions.  The expectations are:

1. Clearly communicate and embed the approach to preventing and responding to all complaints, and clearly set out the expectations of students, staff and visitors.
2. Governing bodies should ensure that the approach is adequate and effective, ensuring that risks are identified and effectively mitigated.
3. Engage with students to develop and evaluate systems, policies and processes to address harassment and sexual misconduct.
4. Provide staff and student training with a view to raising awareness of, and preventing, harassment and sexual misconduct.
5. Implement effective policies and processes for all students to report and disclose incidents.
6. Have a fair, clear and accessible approach to taking action in response to reports and disclosures.
7. Ensure that students involved in an investigation have access to appropriate and effective support.

The OfS does not consider that progress following this statement is sufficient, opening the consultation with an executive summary which states that “in 2020, full-time students were more likely to have experienced sexual assault in the past year than any other occupational group [according to the Office for National Statistics 2021].  The Equality and Human Rights Commission’s 2019 inquiry into racial harassment found that 24% of ethnic minority students had experienced racial harassment on campus and … the Community Security Trust found that there had been 95 antisemitic incidents reported in the higher education community in 2020-21, the highest number reported for any year.”

The proposed new approach would impose the following new requirements on higher education providers:

• To develop, maintain and publish a single comprehensive document setting out the steps, policies and procedures to tackle sexual misconduct and harassment.
• To allocate sufficient capacity and resources necessary to comply with the condition.
• To comply in a manner consistent with freedom of speech principles.
• To prohibit the use of NDAs and reliance on pre-existing NDAs. Providers should take all reasonable steps necessary to prevent the restriction of disclosure of information by relying on a pre-existing NDA or other document.
• Personal relationships between staff and students will either need to be disclosed and registered or entirely banned. Staff who either fail to disclose a personal relationship or refuse to end a personal relationship (depending on which proposal is adopted), could be dismissed.

It is proposed that definitions of harassment and sexual misconduct should be the same as the meanings set out in the Equality Act 2010, the Protection from Harassment Act 1997 and the Sexual Offences Act 2003.

Institutions will be expected to be compliant with condition E6 within three months of its adoption, and it is therefore advisable that policies are reviewed early to be brought in line with any new requirements.  Please do get in touch with our Education team if you would like to discuss how the new conditions may impact your institution, or if there are any points that you are keen to review or develop in light of these proposals.