Out-Law News | 05 Oct 2018 | 4:22 pm | 3 min. read
Researchers at The 1752 Group conducted interviews with a small number of students and early career academics at 14 UK universities, along with analysis of 61 policies relating to sexual harassment at 25 higher education institutions. Their report (35-page / 494KB PDF) warns that there are still significant failings in university procedures for reporting and investigating complaints.
These failings included ineffective complaints processes and disproportionate and lengthy investigations taking several years which place a significant burden and stress on a complainant. The report raises concerns that a lack of clarity over the power of regulators to intervene creates a perception that UK higher education institutions (HEIs) are "effectively being left to self regulate with minimal oversight or threat of legal challenge".
The report makes a number of recommendations around better training for staff; better support and advocacy for those making allegations; better regulation; and greater availability of legal advice. Separately, The 1752 Group and law firm McAllister Olivarius have produced draft guidelines for sexual misconduct investigation and interview processes (11-page / 241KB PDF), on which they are now seeking feedback.
In their foreword to the report, the researchers said that their work provided "stark evidence of students' and early career researchers' experiences of staff sexual misconduct and the inadequate responses received from higher education institutions". In particular, they highlighted an "urgent" need for HEIs to tackle "serial offenders", noting that 12 of their 16 interviewees had said that the perpetrator had targeted at least one other woman.
"These findings show that staff sexual misconduct is not about isolated incidents, but that many institutions employ serial abusers and that their behaviour has been taking place for years without being addressed or challenged by their institution," the researchers said. "The kinds of informal solutions that are sometimes offered ... are inadequate and serve only to prolong the behaviour and widen the impact."
"The analysis of policies in this report shows that HE institutions do have some awareness of staff sexual misconduct as an issue. However, relatively few institutions show a detailed and robust approach to this issue, even on the level of policy," they said.
The researchers found that, in the cases that they considered, there were weaknesses in the HEI's procedures for reporting and investigating complaints. The failings identified in the cases reviewed included lack of clarity over reporting and support, lack of training for staff in relation to handling allegations and delays caused by parallel police and HR procedures. Concerns were also raised about the burden and stress placed on complainants caused by internal tribunal procedures and insufficient redress for complainants, who due to the confidentiality of the HR process were often left with no knowledge of the outcome. In addition, only one of the perpetrators in the cases considered by the report was removed from post after disciplinary action, although another two resigned.
The report recommended "urgent" improvement to HEIs' internal investigation processes, following their draft guidelines. Institutions should also provide clearly signposted formal and informal complaints processes and support and advocacy for students and staff who report staff sexual misconduct, while the Office for the Independent Adjudicator for Higher Education (OIA) and the Office for Students (OfS) should take on tougher regulatory roles, enforcing time limits around investigations and sanctioning universities who do not adequately deal with reports of staff sexual misconduct.
"The findings of the report are an important reminder that despite the progress which the sector has made in tackling serious misconduct allegations since the UUK report on sexual misconduct affecting students two years ago, there is still a lot of work to do," said universities dispute resolution expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law.com.
"This relates not only to ensuring that robust procedures are in place to investigate allegations, but also that staff who are tasked with implanting those processes are sufficiently trained so that the integrity of those procedures and the support provided to the various stakeholders involved in maintained. It is also clear that the OIA should be ensuring that students have a greater awareness of its powers to intervene at interim stages of an internal process if appropriate - in particular where it is perceived that there has been unreasonable delay" he said.
"However, what the report fails to acknowledge is that universities are in a very difficult position when faced with allegations of serious misconduct against both staff and students. Firstly a university is likely to have duties to support both a reporting student and a party responding to an allegation. It has to manage an inherent internal conflict when instituting its procedures. Furthermore, a university procedure is concerned with misconduct, and not designed to determine matters of criminal law which are reserved for the courts. These complexities are beyond a university's reasonable control and not properly reflected in the conclusions of The 1752 Group," he said.
"While the sector should carefully consider many of the concerns raised in relation to lack of training, support and procedural failures, it would be unfair to assume that universities will be able to overcome a lot of the difficulties which arise out of police intervention, and the limited jurisdiction which universities have to determine serious allegations when compared to the criminal courts," he said.