Office for Students (OfS) Consultation on a new approach to regulating harassment and sexual misconduct in English higher education

In light of growing evidence that harassment and sexual misconduct are significant issues affecting students in higher education, the OfS published in 2021 a set of voluntary standards, via a statement of expectations, of the systems, policies and processes institutions should have in place to prevent and respond to incidents. An independent evaluation of the statement of expectations, published in November 2022, found variations in practice across the sector and insufficient progress. It concluded that some institutions were slow to adopt measures, not sufficiently prioritising the issue, and not sufficiently engaged with all forms of harassment.

As a result, the OfS is proposing a new condition of registration on harassment and sexual misconduct – E6 – details of which are outlined in the consultation, which closes in May.

The full consultation document can be found here.

At-a-glance:

• Providers would be required to have the capacity and resources necessary to facilitate compliance with the proposed condition on harassment and sexual misconduct, to ensure appropriate resources are allocated (p24)
• The proposals 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) (p33)
• Two options are outlined: requiring such relationships to be reported (the OfS preferred option) and a register of relationships maintained, or a ban on relationships between students and relevant staff members. Any relevant member of staff refusing to disclose a personal relationship with a student would be dismissed (p33)
• Mandatory training for students is proposed that should include ‘bystander training’ for potential witnesses to raise awareness of, and prevent, sexual misconduct. Mandatory training for staff likely to be involved in receiving disclosures about incidents is also proposed (p56)
• Institutions should publish a single document setting out how they will make a significant and credible difference in tackling harassment and sexual misconduct (p16)
• The document would include information about how to report cases of harassment and sexual misconduct (p18)
• It will outline how disclosures will be handled, investigations undertaken, and any decisions made in respect of how incidents and decisions are communicated to relevant individuals (p18)
• Details will also be provided about arrangements for supporting students who have experienced incidents of harassment or sexual misconduct (p18)
• The use of non-disclosure agreements (NDAs), that forbid students from talking about incidents of harassment or sexual misconduct that they may have experienced, would be banned, as would any enforcement of existing NDAs (p30)
• Universities will have to ensure they continue to meet their legal and regulatory obligations in relation to both freedom of speech and harassment (p26)

Implications for governance:

According to the OfS, there is clear evidence – presented in an annex at the end of the consultation – of “a substantial volume of harassment, including sexual harassment” perpetrated on students with protected characteristics. The evidence of ‘slow and patchy’ progress on the issue across the sector, underpins its decision to make tackling the problem a condition of registration.

From a governance perspective, the creation of the E6 condition is likely to require a thorough and comprehensive review of institutions’ current policies and practices in relation to harassment and sexual misconduct.

Complying with the new proposed condition is also likely to have resource implications for universities, particularly the requirement to lay out the action that will be undertaken to address the issue and the mandatory training of all students. The consultation makes the point that “a short online session at the beginning of a student’s higher education career that does not allow for questions and discussion, is unlikely to be sufficient to meet our proposed requirements”.

Governors should consider too whether their institution should perhaps put greater emphasis on consultation and working with students’ unions than is implied in the main body of the consultation document. They may, for example, wish to ensure that their institution works with their student union to seek assurances on procedures that deal with instances of sexual harassment and misconduct that happen within students’ union activities, such as sports clubs.

The plan to regulate on relationships between staff and students is an area where the OfS particularly welcomes views from the sector.

It says that while the majority of those working in higher education behave appropriately towards students, “there can be a power imbalance in personal relationships that could be exploited by unscrupulous staff to subject students to harassment or sexual misconduct”.

Some universities already have a ban on all relationships between staff and students. The OfS’s preferred option is a register of relationships - an idea that may present potential issues, such as student privacy and data protection considerations.

A ban on non-disclosure agreements (NDAs) across the sector is also on the cards. The evaluation of the sector response to the 2021 OfS statement of expectations on harassment found that “only just over half of universities” had signed up to stop using NDAs, leading the authors to conclude that “some institutional leaders appear to be able to make a more persuasive case than others in relation to claims about taking harassment and sexual misconduct very seriously”.

Governors may well need to revisit whether harassment and sexual conduct have been sufficiently high on the governance agenda, in light of the measures outlined in the consultation.

The process of reporting incidents, the specifics of how they are dealt with and the support given to students during the process must now be published in a single document, according to the consultation proposals, which should also contain information about concrete action the university is taking to make harassment less likely. Governors should look to seek assurance that their current procedures meet the proposed conditions of registration and work in the context of their institution.

The measures in the single document would have to be pursued within the context of maintaining freedom of speech. When deciding what constitutes harassment, universities would be expected to take into account not only the perception of the person who is at the receiving end of the conduct, but also the other circumstances of the case and whether it is reasonable for the conduct to have that effect. The last point introduces “an element of objectivity into the test”, according to the OfS, which will be important in freedom of speech considerations.

Down the line, governors may want to watch out for a sector-wide prevalence survey that the OfS hopes will provide “consistent quantitative data” about the harassment and sexual misconduct affecting students. Its findings, once public, brings potential reputational risks.  A pilot will be conducted in the 2022/23 academic year.  

A wider take-home message, perhaps, is the readiness of the regulator to take steps when it decides that self-regulation “has not delivered the changes we think students are entitled to”, as in the case of its assessment of how the sector responded to its expectations on tackling harassment.

Within the consultation, the OfS has taken the opportunity to reiterate its powers of intervention: “For example, we could increase the scale and frequency of our monitoring activities, impose further conditions, or where there is a breach of a condition impose a monetary penalty or suspend or remove a provider’s registration,” it says.

While the consultation proposals are aimed at institutions in England, governors based in other parts of the UK may wish to use the document as an opportunity to be proactive and review their own institutions’ practices on sexual harassment and misconduct, and seek assurances in this area where appropriate.