Addressing Harassment and Misconduct

There have been growing calls from students that universities and colleges need to do more to tackle harassment and sexual misconduct.  These are issues that impact all universities and colleges, and, in January 2020, the Office for Students (OfS)  published their 'Statement of expectation for preventing and addressing harassment and sexual misconduct affecting students in higher education' which was intended to support Higher Education providers in England to 'develop and implement effective systems, policies and processes to prevent and respond to incidents of harassment and sexual misconduct.'   The publication of their 'Statement of expectation' was borne out of the concerns about the high level of harassment and sexual misconduct affecting students in higher education, the expectation that students should be able to study without facing harassment or sexual misconduct, and that there was significant variation between the practice adopted by different universities and colleges in responding to incidents, to the detriment of those students affected. 

In November 2022, an independent evaluation was published of the impact that the 'Statement of expectation' had achieved. In short, some improvements in policies and systems had been observed, leading to an increased recognition of the seriousness of the issue of harassment and sexual misconduct, but there were still clear variations in practice, and an overriding view that more needed to be done.

In light of those concerns, OfS started their 'Consultation on a new approach to regulating harassment and sexual misconduct in English higher education' in February 2023. Responses were invited from Universities, Colleges, students and other interested bodies. That consultation has now closed, and a summary of responses is expected to be published in the coming months. At that point, we will have a better idea whether a new regulatory framework will be imposed and what that might look like. However, the current proposal from OfS is that there will be a new condition of registration imposed that places substantive and enforceable obligations on universities and colleges to ensure that students are protected from harassment and sexual misconduct.

The OfS states that the "proposed new condition would, among other things:

• Provide clear definitions of harassment and sexual misconduct to support consistency across the sector (something the Cardiff University students are pushing for).
• 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
  • 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.

• 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 that forbid students from talking about incidents of harassment or sexual misconduct that they may have experienced (albeit many universities and colleges have already pledged not to use these)
• 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: requiring such relationships to be reported (OfS's preferred option) and a register of relationships maintained, or a ban on relationships between students and relevant staff members"

Universities UK, the sector body representing over 140 universities in the UK, provided a detailed response to the OfS consultation. Whilst they agreed that the sector must continue to do more to tackle harassment and sexual misconduct, they argue that "… universities taking a self-regulatory approach to tackling harassment and sexual misconduct is the optimum way to solve the issue. …"

It is trite law that where a student suffers harassment or sexual misconduct at the hands of an employee or servant of a university or college, then that institution will ordinarily be vicariously liable for their acts. However, in circumstances where there is student on student harassment or sexual misconduct, the generally accepted position in law is that the university or college would not have any liability to the victim for the acts of the student. However, the publication of the 'Statement of expectation' and the introduction of any new regulations or guidance are going to be the benchmarks against which the policies and procedures relating to the prevention of harassment and sexual misconduct will be measured.

Failing to adopt prevention strategies, failing to have in place sufficiently robust policies and procedures that meet the regulations and guidance and, importantly, failing to take all steps required by those policies and procedures on a timely basis (with evidence to show that decisions taken at each stage of the investigation are fully in compliance with the policies and procedures) would  expose universities and colleges to a finding that they have liability to the victim.  Such claims have already been successfully been pursued in court and we consider that there is a likelihood that an increasing number of claims will be pursued in the future, particularly given the perception that universities and colleges still need to do more in this space.

Universities and colleges should ensure that their own policies meet, as a minimum, the 'best practice' guidance provided by OfS,  Universities UK and any Regulations that are ultimately imposed. The policies and procedures should regularly be reviewed and updated. Those involved at each and every aspect of the investigatory and decision making process should be provided with ongoing training to ensure that they fully understand the policies and procedures, their role in ensuring that the investigations and decision making fully comply with those policies and procedures, and that the steps taken and decision made are properly documented.