Careful drafting will prevent OfS guidance undermining universities’ anti-harassment efforts

Without careful drafting, there is a risk that the OfS proposals could contradict or confuse some of the already complex and competing duties to staff and students which arise in these cases under employment and equality law, criminal law and data protection – and, potentially, undermining the positive changes some providers have already put in place.

Higher education providers should be reviewing their policies and procedures in light of the OfS consultation (94-page / 885KB PDF), which closes on 4 May. This should be an ongoing process both to continually assure staff and students that an institution is taking all necessary steps to reflect sector guidance and good practice around safeguarding, as well as ensuring compliance with OfS' requirements. This is key to meeting an institution’s duty of care to its staff and students as well as potentially avoiding the future risk of enforcement action.

A new approach to regulating sexual misconduct and harassment

The OfS is the independent regulator for higher education in England. Its aim is to ensure that every student, whatever their background, has a fulfilling experience of higher education that enriches their lives and careers.

The OfS is consulting on a new approach to regulating harassment and sexual misconduct in the English higher education sector. Its proposed approach includes the introduction of a new condition of registration on universities and colleges in relation to these matters to try to achieve a consistent level of protection for all students. The proposals follow an independent report which found insufficient progress towards addressing harassment and sexual misconduct through self-regulation.

The proposed new condition would, among other things, provide clear definitions of harassment and sexual misconduct to support consistency across the sector. It would also require each registered university and college 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; and 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, how to handle disclosures, formal reports, and investigations.

In addition to this, the proposed new condition would:

• 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 (NDAs) that forbid students from talking about incidents of harassment or sexual misconduct that they may have experienced; and
• place regulatory requirements on universities and colleges in relation to personal relationships between students and relevant staff (for example, those involved in teaching students or marking their work). Two options are proposed here: OfS’ preferred option, which would require such relationships to be reported and a register of relationships maintained, or an outright ban on relationships between students and relevant staff members.

The consultation comes as many providers have already taken action to improve their policies and procedures, particularly in light of the OfS’ April 2021 statement of expectations on the prevention of harassment and sexual misconduct affecting students. The statement was itself preceded by guidance in 2016 and 2019 from Universities UK (UUK), the representative body for the higher education sector, on changing culture, which covered various aspects of handling serious misconduct cases.

For example, many universities have signed up to the ‘Can’t Buy My Silence’ voluntary pledge, committing them to not using non-disclosure agreements (NDAs) in cases involving sexual harassment, abuse or misconduct or other forms of harassment and bullying. In addition, a recent House of Lords amendment to the UK government’s Higher Education (Freedom of Speech) Bill includes formal restrictions on the use of NDAs too.

Universities have also been undertaking positive focused actions such as providing ‘zero tolerance’ training, introducing additional support for students through specially trained liaison officers and increased opportunities for reporting concerns, together with clear pathways for next steps; alongside investment into local partnerships aimed at tacking harassment, hate crime and violence against women.

Declaring personal relationships – who, when, how?

Currently, different universities have different policies and approaches in relation to whether and how relationships between staff and students are recorded. There is a balancing act here between the various rights of students and staff. For example, the OfS notes in its consultation that it has carefully considered and had regard to proportionality when devising its proposals given the relevance in this context of article 8 of the European Convention on Human Rights (ECHR) – the right to respect for private and family life. 

The consultation focuses on mitigating risks arising from actual as well as potential abuses of power and conflicts of interest that can arise, which means its scope is wide. In addition, it proposes to include contractors, as well as employees, under the heading ‘relevant staff member’, but considers expressly excluding most cleaning and catering staff, as well as a student who might happen to be a university employee in a university’s bar or shop, for example. How a provider would address these nuances in its policies and training would require careful thought and planning at a time when resources are stretched in many institutions.

The consultation document recognises the proposed requirement to disclose a relationship may require an employer to introduce contractual changes to contracts of employment and related policies. This would place an additional burden on providers, particularly since there tend to be a wide variety of contracts in place and consultation would likely be required to implement any necessary changes.

To implement its preferred option, the OfS would expect a provider to take “all reasonable steps” to require a relevant personal relationship to be reported either before it begins or within a short time of it beginning – the OfS suggests within three weeks would be an appropriate period. Several suggestions of how relationships might begin are given such as “emotional intimacy”, although how this would be identified or monitored by third parties such as HR is difficult to comprehend at this stage. In some cases, the student may not want to declare the relationship and even if such relationships are declared, this can still lead to allegations of abuse of power in the future.

The OfS proposes providers should take appropriate disciplinary action, including dismissal, where a staff member has refused to disclose or end a personal relationship with a student. It is not possible to say in all cases that dismissal would be a fair outcome because each case must be considered on an individual basis. Academic members of staff may also be subject to statutes which provide an additional level of protection from dismissal, depending on the institution.

Providers will welcome the regulator’s continued focus and practical guidance on these important areas. However, with the OfS having made clear that, once a final decision is taken this year, it would aim to implement any new condition within as little as three months, providers should review their policies and procedures now to ensure that any changes expected of them by the regulator can be implemented as quickly and smoothly as possible.