OfS plans may not help universities tackle harassment and sexual misconduct, expert warns

Julian Sladdin of Pinsent Masons was commenting after the OfS announced (94-page / 884KB PDF) that it is considering introducing a formal condition of registration for all higher education providers in England.

The step follows an OfS-commissioned report by SUMS Consulting in November 2022 into the progress which the higher education sector has made in meeting seven core expectations outlined by OfS in April 2021 regarding the prevention of serious harassment and misconduct affecting students. The conclusions of the report were that a positive shift had been made in many areas but that many universities and colleges had been slow to respond. Overall progress was inconsistent across the sector as a whole and, in OfS’ opinion, pointed to the need for further intervention and increased regulation.  

The OfS’ statement of expectations was aimed at improving the way universities and colleges deal with allegations of harassment and misconduct, with an emphasis on putting in place clear policies and better communication and engagement with staff and students. It followed guidance from Universities UK (UUK) issued in 2016 and 2019 on changing culture which covers various aspects of handling serious misconduct cases.

The latest consultation and proposals for a formal condition of registration come at a time when there is continued focus on harassment and sexual abuse within the education system – 119 universities were named in testimonies from survivors of rape and sexual abuse on the Everyone’s Invited platform, and there have been some highly publicised cases involving investigations into staff harassment of students at several leading UK universities. In 2022 there was also a call for all universities to sign up to a pledge against the use of non-disclosure agreements (NDAs) when settling cases with staff and students who have made allegations of harassment or bullying.

In its consultation paper, which is open to feedback until 4 May 2023, the OfS has proposed to impose a new condition of registration on universities and colleges in relation to harassment and sexual misconduct. The OfS believes that this would achieve the consistent level of protection for all students that it feels that self-regulation has not delivered.

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.

Under the plans, each registered university and college would also have to ensure the capacity and resources to deliver everything required by the proposed condition. Providers would also have to 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.

The use of non-disclosure agreements that forbid students from talking about incidents of harassment or sexual misconduct that they may have experienced would also be prohibited.

Universities and colleges would also be subject to regulatory requirements 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: requiring such relationships to be reported and a register of relationships maintained, or a ban on relationships between students and relevant staff members.

The OfS said it is “proposing to place substantive enforceable obligations on universities and colleges to ensure that students are protected from harassment and sexual misconduct to enable them to have an experience of higher education that enriches their lives and careers”.

Higher education expert Julian Sladdin of Pinsent Masons, which assisted UUK on its changing culture guidance, said that he was disappointed but not surprised that the OfS is consulting on more formal regulation in this area given the increasing focus on these issues within the sector in recent years.

However, Sladdin said he is concerned that the OfS' approach, while setting some overarching regulatory benchmarks, will not make it easier for higher education providers to put in place practical, effective measures to prevent cases harassment and sexual misconduct or effectively respond to them when they arise. He said that the OfS can only intervene in relation to wider systemic complaints. It is the Office of the Independent Adjudicator for Higher Education (OIA) that has responsibility for dealing with individual student complaints about how providers handle disciplinary cases.    

Sladdin said: “A number of OfS' proposed regulatory standards reflect the principles that those in the sector who are promoting change, such as UUK, have been working to for a number of years. Many of the practical requirements for dealing with allegations are already set out in the 2016 UUK ‘Changing the Culture’ report and guidance on handling of serious misconduct issues on campus, and more recent UUK publications regarding the harassment of students by staff and handling disclosures.”

According to Sladdin, the need for OfS requirements around free speech and use of NDAs in the context of harassment and sexual misconduct cases is unclear. He highlighted that there are already clear principles for balancing rights of free speech and that these are reinforced by the UK government’s Higher Education (Freedom of Speech) Bill – a recent House of Lords amendment includes formal restrictions on the use of NDAs in the same Bill.

Sladdin expressed concern that the OfS consultation does not appear to address any of the significant legal and practical issues which universities face in handling cases on a day-to-day basis.

He said: “The proposals leave unresolved the complex inter-relationship between internal process and the police, the need for trauma-led investigation skills, the need for access to appropriate support for  survivors, and the difficulties of managing competing duties to staff and students involved in these cases given the various impacting strands of contract law, common law, public law, equality law, criminal law and data protection, amongst others. We must therefore assume that this will still need to be managed through already existing self-regulation.”    

However, Sladdin said governing bodies of higher education providers still have more work to do in ensuring that a provider’s approach to harassment and sexual misconduct is adequate and effective to ensure that risks relating to these issues are identified and effectively mitigated.

Sladdin said: “Higher education providers should be reviewing their policies and procedures in light of the OfS consultation. 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.”

“There is a continued need to promote training for both staff and students on consent and the raising of awareness of the issues of harassment and sexual misconduct as part of any prevention strategy. It is a timely reminder of concerns raised by students about lack of education around sex and relationships. In 2021 a HEPI survey suggested 58% of students believe that some form of training or assessment to show that a student understands sexual consent should be required when starting a degree,” he said.