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Education briefing – OfS publishes consultation on harassment and sexual misconduct

  • United Kingdom
  • Education - Briefings

14-02-2020

The issue of harassment and sexual misconduct has been a high profile one now for some time with widespread local and national coverage across multiple sectors and jurisdictions. This has included copious discussion and analysis of the issue in the education sector. The latest sector specific development occurred on 9 January 2020 with the publication by the Office for Students (OfS) of its consultation on harassment and sexual misconduct in higher education.

The consultation, which closes on 27 March 2020, sets out proposals for the regulation of harassment and sexual misconduct affecting students in higher education providers (ie those institutions in England that are regulated by the OfS). There are three sections to the consultation. The first sets out the scope of the proposals, the second contains a proposed statement of the OfS’s expectations for the prevention of harassment and sexual misconduct (and for addressing it when it occurs) and the third proposes an approach to assessing compliance with existing ongoing conditions of registration under the OfS’s regulatory framework.

A key issue for institutions will be how the final version will impact upon their existing policies and procedures. It also worth noting that although the regulatory focus will be on how students are protected from harassment and sexual misconduct, the OfS expects that providers take a similar approach to protecting staff and visitors.

In this briefing we look at:

• the background to why the OfS is consulting and the purpose of the exercise

• the scope of the proposals – what behaviours it will cover and who it will apply to

• the proposed statement of expectations which the OfS expects all providers to have in place and what these will include

• how the OfS will regulate providers through the existing conditions of registration

• next steps

Why is the OfS consulting?

In the foreword to the consultation the OfS states that there is a “substantial body of evidence” regarding the extent and scale of harassment and sexual misconduct in the higher education sector, as well as “evidence of inadequate practice” within some higher education providers. It sets out some of the evidence it is referring to at Annex B of the document.

In addition it says that there are “widespread” reports of ongoing cases of harassment and sexual misconduct which are not being adequately addressed by providers and evidence of a lack of consistent and effective systems, policies and procedures in place to respond to reports of such incidents.

The OfS states that the purpose of the consultation is to propose a set of expectations of providers, and to require clear, accessible and effective complaints procedures. The intention is that students will:

• be aware of the processes for reporting incidents of harassment and sexual misconduct

• feel confident in reporting incidents and be supported to do so

• know that their complaints will be addressed effectively

The OfS says that having these expectations and processes in place should assist in preventing harassment and sexual misconduct from occurring in the first place, as well as providing support to students affected, and clear and effective systems for redress, if harassment and sexual misconduct do occur.

The OfS says it is particularly (but not only) interested in hearing from students, staff, academics and leaders at higher education providers. It is also interested in the views of employers, third sector organisations, policy bodies, and others “with an interest in tackling harassment and sexual misconduct in English higher education”.

The scope

The scope defines what the OfS means by “harassment” and “sexual misconduct” for the purposes of the consultation.

It regards harassment as including:

• unwanted behaviour or conduct which makes a person feel offended, intimidated or humiliated if it occurs because of, or connected to, one or more of the protected characteristics of age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation

• any incidents of physical violence towards another person on the basis of a protected characteristic

• hate crimes

Sexual misconduct is all unwanted conduct of a sexual nature, including, but not limited to, sexual harassment; unwanted conduct which creates an intimidating, hostile, degrading, humiliating or offensive environment; assault; rape; physical unwanted sexual advances; intimidation, or promising resources or benefits in return for sexual favours; or distributing private and personal explicit images or video footage of an individual without their consent.

The consultation states that although the regulatory focus will be on how all students registered at a provider are protected from harassment and sexual misconduct from other students, staff and visitors of the provider, it expects that providers take a similar approach to protecting staff and visitors. References in the document to “staff and visitors” include academic and non-academic staff, governors, temporary or contracted staff and visiting lecturers, whether paid or unpaid.

For the purposes of the proposals, a provider’s responsibility extends to all students, including home, EU and international, undergraduate, postgraduate, full-time, part-time and those studying by distance learning. This also includes students studying on placements and on courses overseas where the provider is the awarding body.

The consultation goes on to state that rules on harassment cannot be used to undermine existing legal protections for academic freedom, and that exposure to course materials that students might find offensive or unacceptable is unlikely to constitute harassment.

Finally, in this section, the OfS makes it clear that its regulatory remit does not extend to intervention in individual student cases to provide resolution or redress. These should be dealt with through the normal route of a provider’s internal complaints processes and then, potentially, to the Office of the Independent Adjudicator for Higher Education (OIA).

Statement of expectations

Section 2 of the consultation sets a proposed statement of expectations for the processes, policies and systems which the OfS expects all providers to have in place to prevent and respond to harassment and sexual misconduct. There are seven of these as follows:

Higher education providers should clearly communicate, and embed across the whole organisation, their approach to preventing and responding to all forms of harassment and sexual misconduct. They should set out clearly the expectations that they have of students, staff and visitors.

To include:

• a visible commitment from senior leaders and the governing body to preventing and responding to all forms of harassment and sexual misconduct

• providers working with students’ unions, or other relevant student bodies, and student representatives to deliver a clear and consistent message to students, staff and visitors that harassment and sexual misconduct will not be tolerated

• providers clearly setting out behavioural expectations for prospective and current students, staff and visitors, and the possible sanctions that can be imposed where these are not followed

Governing bodies should ensure that the provider’s approach to harassment and sexual misconduct is adequate and effective. They should ensure that risks relating to these issues are identified and effectively mitigated.

To include:

• activities to tackle harassment and sexual misconduct being embedded within existing governance structures

• the governing body routinely being given information on the provider’s approach to harassment and sexual misconduct for consideration and action (as necessary) - this might include periodic reporting on the types of cases and incidents, trends and outcomes of cases and an opportunity to review and discuss preventative measures and their impact on students

• the steps taken to ensure that those with a governance role have a clear understanding of the issues that are relevant to their responsibilities – such as through training and briefing of relevant staff or members of the provider’s governing body and committees

Higher education providers should engage with students to develop systems, policies and processes to address harassment and sexual misconduct.

To include:

• proactive and meaningful engagement with students and student representatives in the development, implementation and evaluation of systems, policies and processes for preventing and responding to harassment and sexual misconduct, and in how to support students who have experienced it

• engagement with a diverse range of students (and learning from the experience of students who have been involved in investigations) to ensure that systems, policies and processes are adequate and effective

• engagement conducted in a sensitive manner to support student wellbeing

Higher education providers should implement adequate and effective staff and student training to raise awareness of, and prevent, harassment and sexual misconduct.

To include:

• a clear training strategy for all staff which supports them to respond effectively to different types of harassment and sexual misconduct incidents

• training for all staff and students to raise awareness of harassment and sexual misconduct to prevent incidents and encourage reporting where they do occur

Higher education providers should have adequate and effective policies and processes in place for all students to report and disclose incidents of harassment and sexual misconduct.

To include:

• provision of easy to understand information for all students and staff on how they can report, disclose or seek support and advice if they experience or witness any incident of harassment and sexual misconduct

• provision of support for students not being dependent on a formal report or complaint being made

• policies and processes for reporting communicated to all students in an accessible way

• signposting or referring students to the police, NHS, sexual assault referral centres or hate crime reporting centres if required and requested, or to local specialist services such as Rape Crisis (if specialist support is needed)

• an understanding and removal of any barriers to reporting that may exist for particular groups of students

Higher education providers should have a fair, clear and accessible approach to taking action in response to reports and disclosures.

To include:

• a visible and easy to understand policy which sets out the circumstances in which a provider would initiate disciplinary proceedings against a student, staff member or visitor (including member of the governing body) where relevant, and how the provider’s process addresses disciplinary issues that may also constitute a criminal offence

• visible and easy to understand information for all staff and students about the provider’s investigatory process, decision-making process and associated timescales – including the range of actions that may result from the provider’s investigation process and information about any appeal process and how this can be accessed

• an investigatory process that is demonstrably fair, independent, and free from any reasonable perception of bias

• that disciplinary hearings that consider student complaints and appeals are conducted by a panel that is free from any reasonable perception of bias, is diverse and includes student representatives where appropriate – with all panel members trained in handling complaints of this nature and independent from the investigatory process and specific case being considered

• an approach which ensures that staff respond appropriately and consistently to a disclosure about harassment and sexual misconduct

• a clear explanation of how confidential information will be used and the protections in place for individuals, within investigatory and disciplinary processes

Higher education providers should ensure that students involved in an investigatory process have access to appropriate and effective support

To include:

• ensuring that, in the event of a disclosure about an incident of harassment and/or sexual misconduct, both the reporting and responding parties have equitable access to appropriate support prior to the decision to launch a formal investigation, for the duration of any investigation, and following its outcome

• an appropriate protocol for communication with reporting and responding parties.

• procedures that ensure that all reports of incidents of harassment and sexual misconduct are dealt with within a clearly communicated and reasonable timeframe

• that reporting and responding parties are provided with an outcome of the investigatory process where the provider is able to share this information, or an explanation of any actions the provider has taken, or not taken, as a result of learning from the complaint

The OfS proposes, within two years of the publication of a finalised statement of expectations, to evaluate their impact. This is to allow it to consider whether the expectations themselves need to be changed and whether further direct regulatory intervention may be needed.

Regulating complaint handling through existing conditions of registration

Although the OfS considered alternatives (including creating an additional condition of registration setting out specific requirements in relation to harassment and sexual misconduct) it believes that the approach set out in its regulatory framework, and the existing conditions of registration, provide it with the regulatory tools it needs to intervene where there is a failure to respond appropriately to reports of harassment and sexual misconduct.

Where a provider fails to operate a robust reporting and complaint handling mechanism for harassment and sexual misconduct cases, that could constitute a breach, or an increased risk of a future breach, of initial and ongoing conditions B2 (Quality) and C1 (Guidance on consumer protection law).

Condition B2 (Quality) states that the provider must “provide all students, from admission through to completion, with the support that they need to succeed in and benefit from higher education”. Under the regulatory framework the behaviours that may indicate compliance with this condition include “the provider has fair and transparent procedures for handling complaints and appeals which are accessible to all students”.

Therefore, when considering whether a provider’s procedures are fair, transparent and accessible to all students the OfS is proposing to take account of points 5, 6 and 7 of the statement of expectations (namely - that higher education providers should have adequate and effective policies and processes in place for all students to report and disclose incidents of harassment and sexual misconduct; should have a fair, clear and accessible approach to taking action in response to reports and disclosures; and should ensure that students involved in an investigatory process have access to appropriate and effective support).

The consultation says that fairness will be understood to mean both that the complaint process, as a whole, is operated in an effective and timely manner and that fair treatment and support is available for those involved.

The OfS makes it clear that this does not mean that failing to deliver one of the statements in points 5, 6 and 7 of the proposed statement of expectations would automatically constitute a breach of condition B2. It would consider the context, the reasons for the provider’s approach, and whether it had taken alternative action to ensure its complaint process was fair, transparent and accessible to all students.

The position is similar in relation to Condition C1 (Guidance on consumer protection law) which states that the provider “must demonstrate that in developing and implementing its policies, procedures and terms and conditions it has given due regard to relevant guidance about how to comply with consumer protection law” – namely the guidance from the Competition and Markets Authority (CMA) which sets out the expectations for student complaints, including setting clear timescales, not creating unreasonable barriers for pursuing complaints, clarifying routes for escalation and ensuring staff are appropriately trained.

The OfS’s view is that the CMA guidance aligns with many of the specific points identified in points 5, 6 and 7 of the statement of expectations and therefore the OfS will take these points into account in assessing whether the provider has regard to the CMA guidance.

Again, this does not mean that failing to deliver one of the statements in points 5, 6 and 7 of the proposed statement of expectations would automatically constitute a breach of condition C1, as the OfS says it would consider the context, the reasons for the provider’s approach, and whether it had taken alternative action to ensure it had given due regard to relevant guidance concerning how to comply with consumer protection law.

In relation to assessing compliance, the OfS believes this will be done by monitoring - with the most likely sources of information being notifications from students or their representatives; reportable events from providers (for example of other regulatory or legal action); or information received from other regulators or relevant bodies (in particular the OIA). Though it says it “will remain open to other potential sources and take account of any relevant information we become aware of, including for instance through reports in the media”.

However, the OfS does not think it would be proportionate or effective to require the regular submission of information from all providers about their compliance with these requirements and there will be no need to submit additional information unless specifically requested to do so as part of the OfS’s monitoring and intervention approach.

If the OfS identify an increased risk of a future breach of conditions B2 or C1 as a result of breach of the statement of expectations it may use any of the interventions set out in the regulatory framework and associated guidance including formal communication, enhanced monitoring, specific ongoing conditions or sanction powers (monetary penalties, suspension from the Register or deregistration).

What will happen next?

The OfS will publish a summary of responses to the consultation in summer 2020 and set out the next steps in the policy and implementation process.

The intention is that the proposals would take effect from summer 2020. This would mean that the OfS would have regard to points 5, 6 and 7 of the statement of expectations in determining whether ongoing conditions of registration B2 and C1 were satisfied from that date.

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