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

Our first briefing in the series, which considered the requirement to publish a single comprehensive source of information, we referred to the fact that tis must set out the provider’s policies and procedures relating to intimate personal relationships between staff and students.In this, the fourth briefing, we look at what the new condition says on the thorny issue of staff/student relationships.

In the initial consultation published on 23 February 2023, the OfS proposed two options. The first, (their preferred option) was to require such relationships to be reported and a register of relationships maintained. The second was an outright ban on relationships between students and relevant staff members.

Having considered the responses to the consultation, the OfS has decided to take a slightly different approach in respect of intimate personal relationships and instead require the provider to ensure that the single comprehensive source of information provides for one or more steps which could (individually or in combination) make a significant and credible difference in protecting students from any actual or potential conflict of interest and/or abuse of power. The OfS says that this gives providers the discretion to consider the context and introduce measures that are appropriate for their particular circumstances, whilst at the same time being robust as it requires steps to be taken.

Before considering what steps an institution might take we need to consider when the requirement arises.

Definitions

Intimate personal relationships are defined as relationships that involve physical intimacy (including isolated or repeated sexual activity) and/ or romantic or emotional intimacy.

What is an actual or potential conflict of interest is not defined but abuse of power is where a relevant staff member exploits a position of power in relation to a student so as to apply pressure in a way which:

• may result in the student doing something, or refraining from doing something, that they may not have otherwise done; and
• that action or inaction could reasonably result in something that falls within the scope of an intimate personal relationship.

A relevant staff member is a member of staff who has direct academic responsibilities, or other direct professional responsibilities, in relation to the student concerned.

The guidance states that ‘academic responsibilities’ include, but are not limited to, teaching, supervision and assessment and that ‘other direct professional responsibilities’ is intended to capture staff with a direct professional or pastoral responsibility for a student, including but not limited to mental health advisers, staff operating student complaint processes and security personnel.

Those who the OfS expects to fall within the definition of relevant staff member include:

• teaching staff, such as lecturers or graduate teaching assistants
• dissertation or project supervisors for taught postgraduate students or research students
• personal tutors and pastoral support staff
• senior members of staff with responsibility or oversight of wider institutional strategy, processes and delivery, for example, vice-chancellors
• security staff

What steps should a provider take?

The condition gives two examples.

The first is a ban on intimate personal relationships. This means a policy or rule which (with the exception of excluded relationships) prohibits a relevant staff member from having an intimate personal relationship with one or more students and provides that any breach of this would result in the provider taking appropriate steps in line with its usual disciplinary process, including the possibility dismissing the relevant staff member.

An excluded relationship is an ongoing intimate personal relationship that either existed before 1 August 2025 or existed before the date that the staff member became a relevant staff member in relation to that student.

The condition states that a ban is deemed to be a step which could make a significant and credible difference in protecting students. Therefore, whilst there is not a requirement for institutions to ban personal relationship falling within the definition, doing so is likely to mean compliance.

The second example in the condition is a statement made by the provider to the effect that it disapproves of and/or discourages intimate personal relationships between staff and students. Whilst this may contribute to compliance it will not in itself be treated as a step which could make a significant and credible difference in protecting students, and therefore something more is needed. What might that be?

The OfS guidance gives a number of examples (in addition to disapproving of and/or discouraging intimate personal relationships) a provider could take as part of a package of measures to make a significant and credible difference in protecting students from any actual or potential conflict of interest and/or abuse of power:

• raising awareness among students of behaviours which may amount to abuse of power, coercion, or sexual and/or romantic advances in the context of intimate personal relationships
• empowering students to refuse and report inappropriate behaviours from staff and providing information about how they can access support
• ensuring staff are appropriately trained about appropriate professional boundaries and the likelihood of harassment and sexual misconduct occurring within such relationships
• requiring staff to disclose intimate personal relationships with students when they occur, and maintaining a record of these
• managing the academic and/or professional interaction between a relevant staff member and a student with whom the relevant staff member has an intimate personal relationship, in order to ensure the student’s academic, employment and pastoral interests are not compromised and to ensure that there is confidence that all students are being treated fairly

Providers are also expected to regularly review the efficacy and appropriateness of their approach to relationships between staff and students and amend that approach as necessary.

What should providers do now?

Consider what approach you are going to take to dealing with intimate personal relationships. Are you going to introduce a policy banning such relationships (if you have not already got one) or are you going to take other steps? If the latter, which steps are you going to take? Are you going to adopt all or some of the OfS suggestions or are there any other steps you feel are appropriate and will work?

If you do not introduce a ban, how are you going to decide which steps to take? This could include:

• gathering and analysing evidence of the prevalence of relationships between staff and students at your institution
• assessing the volume, severity and nature of any complaints made
• assessing the risk of harassment and/or sexual misconduct occurring as a result of the actual or potential abuse of power and conflicts of interest that can arise from relationships between staff and students
• consulting with students to ensure that their views, interests and needs are taken into account

How often are you going to review the effectiveness of your approach and are there any circumstances, such as an increase in complaints, which might make you review sooner?

How we can help

Our specialist higher education team has the expertise and resources to audit your existing policies and procedures to the extent they deal with these types of relationships and advise you on any changes that may be necessary. Equally, if you do not currently prohibit or set restrictions/requirements on relationships between staff and students we can advise on the options available and their pros and cons.

Next time

In our next briefing we will consider what the condition says about free speech and the interrelation between this and dealing with harassment and sexual misconduct incidents.