Education briefing - OfS – the new condition on harassment and sexual misconduct

In a series of briefings we will be looking at different aspects of the new condition and the steps which institutions should take as a result. Although the new requirements do not come into effect until 1 August 2025 (apart from the condition on non-disclosure agreements with students which was introduced on 1 September 2024 and is the subject of a future briefing in the series), it is recommended that providers give thought to what they will need to do as soon as possible given the amount of work compliance with the new condition is likely to entail.

In this, the first in the series, we consider the requirement for registered providers to publish and maintain a single “comprehensive source of information” on how they will deal with incidents of harassment and sexual misconduct.

This must set out the provider’s policies and procedures on dealing with incidents of harassment and sexual misconduct and must include its approach to intimate personal relationships between staff and students (we will cover this aspect in more detail in a later briefing). The original consultation envisaged that there would have to be one document covering all the required information but the final version of the condition helpfully states that the obligation can, as an alternative, be discharged by a single document or webpage that summarises the required information with links to additional documents that comprehensively set out the remaining details.

How must the information be communicated?

The single comprehensive source of information must be published in a prominent position in an area of the provider’s website which is easily accessible by students, and by those considering applying to be students, without the need for any form of password or security check.

In addition, a clear and easy to understand statement about the existence of the single comprehensive source of information, the nature of its content, and how to access it, must be:

• communicated to all students and staff in writing at least once each calendar year;

• set out in the main documents designed to promote the higher education services available from the provider (eg its prospectus); and

• set out in any documents that are designed to provide a collection of useful information about rules, policies and procedures for students and staff (such as student and staff handbooks).

What must the information contain?

The single comprehensive source of information must comply at all times with the “minimum content requirements” which means having comprehensive and easy to understand provisions in respect of:

• the steps the provider is taking which could make a significant and credible difference in protecting students from harassment and/or sexual misconduct;

• he ways in which students, staff and other persons are able to report behaviour that may amount to harassment and/or sexual misconduct;

• how information received or obtained in connection with incidents of harassment and/or sexual misconduct will be handled sensitively and used fairly;

• how the provider ensures that students are appropriately informed to ensure understanding of the provider’s policies and of behaviour which amounts to harassment or sexual misconduct;

• the support that will be provided to students in response to incidents of harassment and/or sexual misconduct;

• how the provider ensures staff and other persons responsible for receiving information about, investigating, or taking decisions on, matters relating to incidents of harassment and/or sexual misconduct are appropriately trained;

• how the provider ensures that investigations undertaken and decisions made are credible, fair and otherwise reflect established principles of natural justice;

• how the provider ensures that persons directly affected by any decisions made in respect of incidents of harassment and/or sexual misconduct (including those who have alleged and/or experienced such incidents, or are the actual or alleged perpetrators) are informed about the decisions and the reasons for them.

These requirements go beyond simply collating relevant policies and procedures into one place. They require explanations of how these policies and procedures will be applied in practice and in a manner which reflects the principles embodied in the minimum content requirements. A number of these areas – for example, how information will be handled sensitively and used fairly and how the provider will share information on decisions taken and the reasons for them – involve complex legal considerations which do not easily lend themselves to “one size fits all” statements.

Whilst the single comprehensive source of information can contain additional information to the above, this must not contradict, undermine or conflict with the minimum content requirements.

The status of the single comprehensive source of information

It is vital to appreciate that the single comprehensive source of information is not an aspirational document or statement. Under new Condition of Registration E6.4, the provider “must operate in accordance with and comply with” it. The published information therefore sets the standards against which the OfS will hold the provider to account, making it essential to comply with the published policies and procedures (including timeframes) and the statements made about how the requirements of the “minimum content principles” will be put into effect. Providers will also be obliged  to follow through on the actions they have identified to protect students from harassment and/or sexual misconduct.

What should providers do now?

Although the requirements in relation to the single comprehensive source of information will not come into force until 1 August 2025, the OfS states that it expects the universities and colleges registered with it to be working towards meeting the requirements now. So what will this entail?

Providers will need to decide:

• if they are going to comply with the requirement by having a single document or webpage that sets out all the necessary information, or whether (probably more likely) they will avail themselves of the ability to have a single document which has a clear summary of the detail required by the new condition – with links into additional relevant documents;

• which of their policies and procedures will need to be referenced in the single comprehensive source of information – are those policies fit for purpose (including how they currently define harassment and sexual misconduct, what the current reporting mechanisms are and what support is provided) – and are any new policies needed?

• the extent to which additional commentary is required, alongside existing policies and procedures, to explain how policies and procedures will be operationalised to meet the standards and principles embedded in the minimum content requirements;

• what training they are going to provide to students, to staff and to those involved in receiving reports and disclosures and in investigating and taking decisions on complaints;

• where on their website the information will be contained – bearing in mind the obligation to publish in a prominent position;

• what systems and checks they will introduce to make sure they communicate the existence of the information to students and staff on the frequency required.

In addition, providers need to assess what steps they need to take to make a significant and credible difference in protecting students from behaviour that may amount to harassment and/or sexual misconduct. The OfS guidance gives the following examples:

• considering the potential needs of different groups of students (including those with needs affected by a student’s protected characteristics) for example, by working with students and their representatives when a provider develops its policies and procedures, to ensure that they are appropriate for the provider’s particular student population

• collecting, monitoring and publishing data on the prevalence of harassment and/or sexual misconduct affecting students. This may include data about reporting, such as the number and type of incidents reported to the provider, how many of these lead to an investigation, and the outcomes from incidents and investigations

• undertaking credible and evidence-based evaluation of the effectiveness of the steps it is taking and reviewing and adjusting its approach as appropriate

• considering how to best prevent the use, enforcement and/or reliance on non-disclosure agreements in matters relating to harassment and/or sexual misconduct by third parties, such as placement providers

The OfS believes that these are steps which could assist a provider in making a significant and credible difference in reducing the likelihood of harassment and/or sexual misconduct taking place, and protecting students from behaviour that may amount to harassment and/or sexual misconduct because they place significant emphasis on the need for a provider to engage with its students and their particular experiences of harassment and sexual misconduct in order to determine the steps that may be needed.

How we can help

Our specialist higher education team can provide tailored advice and guidance on how to meet your obligation to provide a single comprehensive source of information. This may include, for example:

• advising on the content and format of the information you need to make available;

• helping to draft your statement about the existence, content and accessibility of the single comprehensive source of information;

• helping you to explain how your policies and procedures will be put into practice, for example in order to meet the requirements of fairness and natural justice and to give credible outcomes from investigations and hearings;

• working with you to navigate the complexities around sharing outcomes and decisions, to articulate how this will be done and ensuring that your policies, procedures and privacy notices enable you to deliver against the statements made in your single comprehensive source of information; and

• supporting you to identify and resolve gaps between your policies/procedures and what currently happens in practice.

Next time

In our next briefing we will consider what policies and procedures should contain and in the one after that look at what training should be provided.