OfS: universities must effectively deal with harassment complaints

Out-Law News | 10 Jan 2020 | 4:22 pm | 3 min. read

Universities could be required to have adequate and effective policies in place for handling student complaints about harassment and sexual misconduct as a condition of their registration, under plans put forward by the higher education regulator for England.

The Office for Students (OfS) has published a proposed 'statement of expectations' setting out the processes, policies and systems it expects universities and colleges to put in place. The new requirements would take effect from summer 2020, subject to consultation feedback.

OfS chief executive Nicola Dandridge said that while many institutions were "taking concrete steps" to improve their student support systems and reporting mechanisms, some students were "still being let down".

"Our proposed statement of expectations sets out the basis of fair, clear and robust processes that we expect all higher education providers to have in place to respond effectively to harassment and sexual misconduct," she said. "Where we see evidence of serious failings, we have the regulatory powers to intervene."

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It would be unfair to suggest that institutions are not alive to these issues or have not made significant progress in taking steps to prevent harassment and sexual misconduct on campus.

Providers would be required to make easy to understand information available to students and staff about how they can report, disclose or seek support if they experience or witness harassment or sexual misconduct, and to put in place a fair, independent and unbiased investigatory process. They would also be required to make appropriate support available to those involved before, during and following any formal investigation.

Prevention and awareness-raising are also covered by the proposed statement of expectations. Providers would be expected to make training available to staff and students to help prevent incidents and encourage reporting, and to clearly set out behavioural expectations and possible sanctions to prospective and current students, staff and visitors.

The 2017 Higher and Education and Research Act (HERA) gives the OfS the power to impose conditions of registration on higher education providers, as well as allowing it to apply interventions and sanctions. However, the OfS is not able to intervene in individual student cases, which must be dealt with through the provider's own complaints process and referred to the Office of the Independent Adjudicator for Higher Education where unresolved.

Higher education expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law, said that the proposals "are intended to create greater accountability of higher education providers for the safeguarding of their students".

"The move will be seen as an important step in increasing student confidence in how the sector responds to issues of sexual misconduct and harassment," he said. "Following a number of recent reports by UUK and the EHRC, which have highlighted a perceived lack of progress since the 2016 UUK 'Changing the Culture' report, increasing student confidence is a key."

"However, it would be unfair to suggest that institutions are not alive to these issues or have not made significant progress in taking steps to prevent harassment and sexual misconduct on campus. Our experience is that a lot of important work has and is being undertaken in this area, both through UUK and individual providers. Furthermore, the expectations being set by the OfS simply adopt the principles set out by this firm and UUK in guidance which is already in use," he said.

Noting that the OfS was unable to intervene in individual cases, Sladdin said that grounds for imposing institution-level sanctions by the regulator "will not be easy to implement in practice".

"Often, student dissatisfaction and frustration is caused by the legal and logistical complexities created by the need to interface with the criminal justice system, delays caused by protracted and parallel police investigations and criminal prosecutions - which are often concluded without any charges being brought - the fact that internal tribunals have very limited powers to determine cases and impose sanctions when compared to the courts and the additional difficulties inherent in a provider having to manage its competing and conflicting duties to affected students," he said.

"While these criticisms are often justified and there may be exceptional cases where a provider has systematically failed in its duty to ensure that student expectations are managed and all reasonable endeavours made to mitigate or avoid any unfairness or prejudice being caused, it is going to be difficult in the majority of cases to show that there has been a lack of compliance with conditions of registration. Practical implementation issues created by the complex legal framework which presently exists or in relation to individual fact sensitive cases would not fall within the scope of the proposed powers," he said.