Office for Students Condition of Registration E6: Harassment and Sexual Misconduct

The Office for Students has published a new condition of registration for higher education providers “E6”, which introduces requirements for institutions to protect students from harassment and sexual misconduct. This follows a consultation on a new approach to regulation in this area, launched in February 2023, which in turn came after an evaluation of progress made by the sector on a ‘statement of expectations’ published in April 2021 (see Advance HE governance news alert). The new condition carries significant governance implications for all higher education providers, introducing a new set of expectations and guidelines affecting all students, academic and academic-related staff, and their institutions. It also comes as a pilot survey found that 20 per cent of students have experienced unwanted sexual behaviour, with nearly 70 per cent of these occurring in a university setting or involving someone connected with a university. The OfS has published a suite of information relating to the new condition, including guidance and webinars for institutions and students, the conclusions of the consultation, and full findings of the pilot survey. 

At a glance: 

• All higher education providers registered with the OfS must publish and maintain policies and procedures that set out how they will deal with incidents of harassment and sexual misconduct. This must take the form of a single ‘comprehensive source of information' (CSI), set out in a single document or webpage. The CSI must comply with minimum content requirements and principles, and a provider must be transparent about any changes made to this
• Providers must explain the steps they take that are designed to make a ‘significant and credible difference’ in protecting students from harassment and sexual misconduct. The most suitable steps will depend on the context of the provider and the nature and severity of the issues it faces. The minimum content requirements mean that an institution will need to fully understand its student population and the extent to which its students may be likely to experience harassment or sexual misconduct. Providers with a higher prevalence of these problems may need to take more extensive steps to tackle them
• To protect students in a consistent way, the OfS has set out agreed definitions of harassment and sexual misconduct. Definitions of harassment are based on those set out in Section 26 of the Equality Act 2010 and Section 1 of the Protection from Harassment Act 1997. In summary, these are defined as: ‘harassment, including sexual harassment, includes unwanted behaviour or conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment because of, or connected to, one or more of the following protected characteristics: age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation’; and ‘a course of conduct conducted on at least two occasions that harasses one other person, or a course of conduct that harasses two or more persons at least once each. References to harassing a person include alarming the person or causing the person distress.’ Sexual misconduct “includes but is not limited to” sexual harassment, sexual assault and rape.
• Providers must ensure that they inform students about their policies so that students understand them. The information published must be prominent, public and clear. It must be available on an area of the provider's website that students or prospective students can access easily
• Steps they take to fulfil this requirement might include mandatory training for all students and for potential witnesses of sexual misconduct. Institutions must also train their staff appropriately so they understand and follow policies and procedures. This may involve mandatory training for certain staff. Providers should underpin all training with credible evidence and make sure they evaluate how effective it has been
• Institutions must set out in their CSI how they will ensure that students are provided with ‘appropriate support’ when they wish to make allegations or complaints, have alleged and/or experienced harassment or sexual misconduct, or are actual or alleged perpetrators. This may involve for instance tailoring support to students with different needs, including those with needs affected by protected characteristics
• Providers must make it clear how students, staff, and anyone else can report behaviour which might amount to harassment and/or sexual misconduct. They must state how they will handle the information they receive sensitively and fairly, and how they will ensure people affected by any relevant decisions are informed about them
• Institutions are required to take steps to protect students from conflicts of interest and abuse of power that can arise from personal relationships between staff and students. The OfS suggests that imposing a ban on intimate personal relationships “is a step a provider could take to achieve this”, although it recognises that “this may not be appropriate in all circumstances”. If a provider chooses not to ban intimate personal relationships or adopts a ban with some exemptions, it will need to take other steps, such as requiring staff to disclose relationships with students and maintaining a record of them
• In any measures providers take to comply with the new E6 condition, they must ‘have particular regard to, and place significant weight on the importance of free speech, and must not take steps that interfere with or restrict lawful free speech “unless where it is proportionate to do so”
• From 1 September 2024 providers will not be able to use non-disclosure agreements (NDAs) where they relate to allegations about harassment or sexual misconduct. This prohibition covers all agreements that compel or seek to stop students from disclosing information about their experiences to a third party
• The OfS says it will take a “risk-based approach” to monitoring in this area, meaning that it will focus regulatory attention on those providers that are at greatest risk of breaching their condition of registration. To identify risk it will look at indicators from routine data collections; reportable events submitted by a provider; notifications from third parties such as students or whistleblowers; and any additional information it has asked a provider to submit
• Where there is intelligence or evidence that indicates compliance concerns, the OfS may gather further information including using its own investigatory powers while engaging with the provider concerned. A breach of condition could lead to the institution concerned facing a fine, additional reporting and regulatory requirements, or suspension of a provider’s registration

Implications for governance:

The new E6 condition of registration is quite far-reaching and comprehensive, and has some significant implications for HE governance. This should come as little surprise to governors, given the length and extent of consultation leading up to its publication, and the amount of evidence gathered in support of this, and the level of media attention and public interest in this area. Most recent of this evidence are the findings of an independent pilot survey by Savanta, which showed that out of 5,000 student respondents 27 per cent of women and 12 per cent of men had experienced unwanted sexual behaviour in the last academic year, mostly in a university setting. 

The condition sets out an array of “must dos” for HE providers, while at the same time acknowledging it has to allow institutions some room to put measures in place that are appropriate for their own context. In recognition of the time it will take for providers to consider and put in place robust and effective policies, and to properly engage with staff and students on these, it has extended its originally proposed timeline for implementing the new condition to 1 August 2025. However, the provision restricting the use of non-disclosure agreements takes effect on 1 September this year. Governors will therefore need to urgently consider how this item might impact on their own institution and how it may need to respond by this tight deadline.

The central “must do” of the condition is the requirement for institutions to publish and maintain a “comprehensive source of information” (CSI) setting out policies and procedures on harassment and sexual misconduct to which it must comply. This CSI must spell out ‘multiple steps which could … make a significant and credible difference in protecting students, but the OfS accepts that such steps “will depend on the context of an individual provider because they will need to be informed by the nature and severity of the issues faced by a provider’s students”. The onus is therefore on institutions to satisfy themselves that they understand their student population and the extent to which its students may experience harassment or sexual misconduct. Governors will want to ensure that measures are in place to gather the necessary information and data.

The OfS provides some examples of steps institutions could take to protect students, such as working with students and their representatives when a provider develops its policies and procedures; collect, monitor and publish data that may inform effective action; and undertaking credible and evidence-based evaluation of the effectiveness of steps it is taking. Governors will note that student and staff representatives on governing boards are likely to play a critical role in the development, maintenance and monitoring of policies and procedures, particularly in the areas of providing appropriate support and training both for students and staff. 

One key consideration for institutions and governors is the requirement to consider the different forms of abuse of power that can take place within intimate relationships between staff and students and how the steps a provider introduces will be effective in addressing these. While the Savanta survey found that only 1 per cent of respondents had had an intimate relationship with staff members, an earlier survey of 3,000 students also published by the OfS suggested the figure was closer to 10 per cent. In its consultation the OfS had proposed that institutions should be required to keep a register of such relationships, but having considered responses it has decided that an outright ban on relationships “would generally be more appropriate and effective”. It is not however mandating a ban for every provider, but allowing institutions to determine the most appropriate means to reduce the potential for abuse of power in its own context. Alternative steps it suggests include explicitly discouraging intimate relationships between staff and students in its messaging to them; raising awareness among students of behaviours that amount to abuse of power; and ensuring staff are appropriately trained about professional boundaries.

Despite the Labour government’s decision to pause planned new free speech duties pending a review, the E6 condition makes it clear that the importance of free speech is a ‘fundamental consideration’ when a provider produces policies and processes for dealing with harassment and sexual misconduct. It explicitly states that “a provider will need to carefully consider its freedom of speech obligations and ensure that it has particular regard to, and places significant weight on, those obligations when creating and applying policies and procedures that are designed to protect students from harassment by other students”. The freedom of speech principles in the condition include a ‘rebuttable presumption’ that requires a provider to assume that the exposure of students to course materials, and statements made and views expressed by a person as part of teaching, research or discussions about any subject matter connected with the content of a course are unlikely to constitute ‘harassment’.

Governors should note that the new E6 condition applies to any higher education course provided ‘by, or on behalf of, a provider’. This includes UK-based and non-UK-based students, and courses delivered through partnership arrangements both within the UK and internationally. Careful consideration will therefore be needed on how institutions will ensure that the policies and procedures they put in place to comply with E6 will be applied, monitored and maintained in any franchise, partnership or transnational education arrangements they may have. Governors should note this Condition of Registration applies to institutions regulated in England, however governors at providers based in other countries may wish to consider their own institutional policies towards harassment and sexual misconduct to ensure they are fit for purpose.