Responding to the OIA Consultation on Handling Reports of Harassment and Sexual Misconduct 

The Office of the Independent Adjudicator (OIA), the independent claims scheme for students in England and Wales, is consulting on draftguidance for handling reports of harassment and sexual misconduct in higher education. This guidance is intended to form part of the OIA’s broader Good Practice Framework.

The OIA is inviting comments on the draft guidance from all parts of the higher education sector. Shakespeare Martineau is responding to the consultation as a law firm with substantial experience of advising higher education clients on dealing with a wide range of challenging cases of harassment and sexual misconduct. We are sharing some of our suggestions for improving the guidance based on this experience and we would encourage all providers to respond too based on their insights and knowledge.

The closing date for responses to the consultation is Friday 6 February 2026.

What does the draft guidance cover?

This new section of the Good Practice Framework is intended to provide good practice guidance for universities and colleges in designing and operating procedures to respond to reports about harassment of any kind, and sexual misconduct. The section covers:

• Good practice when receiving, investigating and responding to reports about harassment and/or sexual misconduct.
• Disciplinary procedures for dealing with students accused of harassment and/or sexual misconduct.

The OIA has based the draft guidance on its experience of handing complaints but has also consulted several sector groups in preparing it.

Responding to the draft guidance

Our comments on each section can be found in italics after the question in bold and any additional context provided by the OIA

General

• This section focuses on giving good practice guidance for providers in designing and operating procedures to respond to reports about harassment of any kind, and sexual misconduct. The structure aims both to give an overview of good practice and to make it easy for readers to find the guidance that is relevant to the context of a particular circumstance.

Is the structure of the section helpful? If not, what would you find more helpful?

In general we agree that it is important to maintain a separation between arrangements for reporting of harassment and/or sexual misconduct, and the processes which deal with discipline. It is essential too to recognise the particularly sensitive and often challenging nature of the issues which can emerge in this domain.

We note that the OIA has sought to recognise the diversity of institutions using this guidance, but this is not applied consistently throughout the document and in places some assumptions are made about the availability of specialist support which will be beyond the reach of some smaller institutions.

Comments under sub-headings

• Language we have used in the good practice framework (Any comments)
• We are particularly interested in views about the use of “report” to include both informal disclosures and more formal reports. Please comment on whether this affects the clarity of our guidance

We are not convinced by the approach here and suggest it needs to be reconsidered. We believe there needs to be a distinction drawn between a report which is going to be taken forward as part of a formal process and a disclosure made by a student who says they do not wish to take the matter any further. Without this distinction the articulation of steps to be taken in response to different kinds of report or disclosure becomes much harder, as is evident in later sections of the guidance.

Regarding paragraph 14, where an incident involves someone beyond the institutional community this really becomes a welfare and support issue, as there are very few steps the institution can take.

• Establishing an appropriate environment for study (Any comments)
• Is the explanation about considerations that apply to regulated providers clear and helpful? (Any comments)

There is some confusion in this and subsequent sections about procedures relating to staff and to students. Further clarification in relation to the former is required.

Regarding the different cultural norms mentioned in paragraph 20 we would suggest that any training should be offered equally to all students, regardless of background.

We welcome the clear advice to providers on avoiding legalistic language.

With regard to paragraph 22f, dealing with behaviours between periods of study, we would observe that this cannot apply for periods between enrolments on different courses with the same provider, where years could elapse between registrations and there would be no contract in place with the student.

Paragraphs 28 and 29 dealing with Convention rights and freedom of speech are confusing and we would suggest not particularly helpful in this context.

• Delivering learning opportunities with others (Any comments)

No comments

• Working with student representative bodies (Any comments)

This is an important section but does highlight how complicated issues can be where students’ unions are involved. It acknowledges this is difficult and it is hard to anticipate a wide range of possible scenarios and then formalise an approach. One approach to consider would be for an institution and its students’ union to address this in very high level way, perhaps as part of an existing formal agreement between the two bodies. Relevant senior parties could be identified who will between them be charged with agreeing a way forward appropriate for each individual case.

• Making a report (Any comments)

It is not the responsibility of a reporting student to correctly identify whether the behaviour they are concerned about meets the definition of harassment and/or sexual misconduct or is better described under another aspect of the provider’s standards of behaviour. It is the provider’s responsibility to decide the best fit for the described behaviour within the definitions it uses.

Paragraph 48 is problematic in that by imposing no time limit on former students coming forward this could prove meaningless, as in practical terms there will be very little which can be done if a student reports decades after an event.

We are not sure that the distinction between anonymity and confidentiality in paragraph 63 is helpful. Confidentiality should be a prerequisite in the majority of cases of non-anonymous reports.

 Regarding paragraph 65 we would be extremely concerned about the suggestion that individuals should be notified of anonymous reports made about them. This should only happen if other steps are being taken in relation to that individual, i.e. if there are other reports which have prompted action.

• The initial response to a report (Any comments)

We think there is possibly an error in paragraph 74b and this should read “non-contact arrangements” rather than “agreements” – these are not often the kind of things that all parties will agree on.

Regarding paragraph 74e on making a report to the police, we believe that the suggestion that “any internal processes will be paused during a police investigation or related court proceedings” [emphasis added] is too definitive. Paragraph 115 allows a little more flexibility and we think that approach should be replicated here.

We note the acknowledgement in paragraph 78 that not all institutions will be able to provide specialist staff and services. Small institutions in particular will struggle with this and may not have the resources to procure services from other local HE institutions.

The section on interaction with other procedures, paragraphs 79-83, is an important one but perhaps understates how things can get extremely complicated when multiple processes are involved, such as ongoing procedures involving other parties, the students’ union, health issues or fitness to practise. We would suggest that greater recognition of this be included together with, ideally, some worked examples of how to resolve ways forward in such circumstances.

• Risk assessment and precautionary measures (Any comments)

This section is generally helpful. Where there is an extended period of uncertainty it is important that both reporting and responding students are supported.

We would also add that it is important to review precautionary measures according to an agreed timetable and to confirm that they are still appropriate. If a reporting student does not want to take any further part in disciplinary proceedings then we would argue that it may be difficult to proceed with precautionary measures unless there are other very good reasons for doing so.

• Mediation and informal resolution (Any comments)

No comments

• Deciding whether to use a disciplinary procedure (Any comments)

There are a number of references to staff discipline procedures which are beyond the scope of this framework. These references risk confusing matters.

The processes as set out are broadly fine, but we do not think it is necessary to hold a meeting with the responding student as set out in paragraph 126 to tell them a report has been made about them. Rather this should be in the form of a formal communication to explain that an investigation is being undertaken and that they will be invited to a meeting.

• Carrying out a formal student disciplinary investigation (Any comments)

We do not believe that reporting and responding students should routinely be given an opportunity to object to an investigator. If they wish to object then can, but paragraph 139 risks inviting objections.

Regarding interviews as mentioned in paragraph 149, we would strongly argue that witnesses should always be interviewed separately.

Paragraph 161 refers to victimisation and we think a different term should be chosen. This term has a legal meaning and should be avoided given the efforts made generally to avoid legalistic language.

We do not believe that it is sensible always to give responding students who admit misconduct the opportunity to have their case considered by an appeal panel as proposed in paragraph 170. It is for the institution to determine. Otherwise it could be that appeal panels are convened to hear disagreements about the imposition of nominal fines or other penalties.

• Holding a disciplinary hearing (Any comments)

In the section starting at paragraph 172 it is not clear if the framework is trying to distinguish between supporters and representatives or is using the terms interchangeably. This needs to be clarified.

We are unsure why it should be the chair who decides which witnesses to call as per paragraph181. Normally it would be the individual presenting the case on behalf of the institution who would do so. In the event that the student is concerned that a particular witness is not being asked to attend, the Chair should then decide whether or not to require attendance.

We would argue that it is never appropriate for attendees to make recordings of disciplinary panels as per paragraph 184, although the institution may choose to.

Regarding paragraph 189 it seems to us that a responding student must be allowed to question witnesses even if this is through the Chair.

Impact statements, as described in paragraphs 208-212, should be used to aid determinations of penalty. It feels here that they are mixed up a little with evidence provision.

• Concluding the disciplinary process (Any comments)

Deciding what and how to inform a reporting student (paragraphs 221 – 227) is challenging and is one of those areas that we at Shakespeare Martineau are asked about the most in relation to such cases. The approach here and the list of documentation is helpful, although it seems to go far beyond what usually happens in our experience.

Paragraph 249 does not rule out the possibility of a reporting student being allowed to appeal against the decision made by a disciplinary panel. This should not happen and should not be part of the framework.

• Learning from reports and complaints (Any comments)

No comments

Overall comments on the section

• Please provide below your comment on the section as a whole
• Is the guidance clear?
• Is there further guidance or information that you would like to see included in this section, keeping in mind our remit and the guidance provided in other sections of the Good Practice Framework?

We believe that the guidance would benefit from the addition of a section on mitigation. At present, the only reference to mitigation is in relation to students who admit behaviour without going to a hearing. But even students who dispute that they have engaged in the behaviour have the right to present mitigation if the Panel concludes that they have done so.

• Are there any other resources you have found useful that you believe should be referenced in the Useful Resources section?

Overall, subject to the changes we have proposed, we found the framework to be reasonable, clear and helpful.

• Any other comments on the section

It would be extremely helpful if the next version of the framework includes anonymised real life examples or case studies to help institutions make sense of some of the guidance.

As ever, our expert team is available to provide advice on a wide range of student discipline issues, including harassment and sexual misconduct. You can get in touch here.