The OfS recently published (19 April 2021) its long-awaited statement of expectations for preventing and addressing harassment and sexual misconduct affecting students in higher education, having carried out a consultation process back in January 2020. The published statement does not differ a great deal from the original consultation draft, other than some points of clarification.
The statement contains seven expectations that are intended to support English higher education providers in developing and implementing policies and procedures to prevent and respond to incidents of harassment and sexual misconduct. These are not (yet) regulatory requirements, but the OfS intends to review how providers respond over the course of the 2021-22 academic year and suggests it may return to the issue as part of its planned review of regulatory requirements relating to consumer law.
What does the OfS' statement of expectations say?
There is nothing in the statement which should come as a surprise to any provider, nor does it contain anything which most providers are not already doing (or at least trying to do) in terms of reporting, support and disciplinary procedures. Whilst the focus is on students who are subject to harassment or sexual misconduct, the OfS anticipates that providers will take a similar approach to protecting staff and visitors, which might require some further consideration.
The OfS' statement of expectations sets out what is considered to be ‘harassment’ and ‘sexual misconduct’. The definition of sexual misconduct is fairly standard, but the definition of harassment is probably wider than most providers’ current procedures and includes domestic violence, abuse and stalking as well as hate crimes and other acts (physical or otherwise) connected to someone’s protected characteristics as defined under the Equality Act 2010.
The expectations can be grouped into three main requirements:
- The role of the governing body in ensuring an adequate and effective approach to dealing with harassment and sexual misconduct, which is embedded across the institution.
- The importance of engagement with students’ unions and other student representatives in developing policies and procedures.
- The need for clear and easy to understand processes for reporting incidents of harassment and sexual misconduct, for providing support to both reporting and reported students, and for investigating and dealing with misconduct.
The OfS expects to see a clear commitment from the provider’s governing body with regular reporting, clear lines of accountability and training for governors on the issues (and, if relevant, their obligations under the Public Sector Equality Duty). Staff should be trained on how to respond to reports of harassment and sexual misconduct (if only to know who to refer them to), and there should be regular training for both staff and students with the aim of raising awareness and preventing incidents.
Most providers are likely already to have processes in place for engagement and consultation with the students’ union about new procedures etc., although the OfS' statement of expectations emphasises the need to engage (in a sensitive way) with a diverse range of students, which some providers can find challenging.
On the procedural side, many providers have already implemented ‘report and support’ procedures to encourage students to report incidents, although some of these are currently limited to incidents of sexual misconduct and will need to be widened (or a separate procedure introduced). Similarly, most providers have a clear statement of behavioural expectations and set out the range of sanctions that can be applied where a student (or member of staff) commits misconduct.
The OfS' statement of expectations contains a number of reminders about procedural fairness, including the importance of a fair investigation process, hearings conducted by independent and appropriately-trained disciplinary panels and appropriate support for both reporting and reported students. Again, most providers’ procedures already meet these requirements (not least because they reflect the OIA Good Practice Framework).
What should providers do now?
In response to the OfS' statement of expectations, providers should:
- review existing reporting/disciplinary procedures to ensure they meet the expectations, in consultation with students’ unions and representatives of a wide range of other student groups
- ensure students (and prospective students) are made aware of relevant procedures, including via social media
- review the role of the governing body in the institutional response to these issues
- review training arrangements for students, staff and members of the governing body
The OfS website includes a large number of resources and examples of good practice in this area which may be useful.
Final thoughts on the OfS' statement of expectations
While the OfS' statement of expectations contains some useful reminders, it is unlikely to fundamentally change how most providers respond to the growing problem of harassment and sexual misconduct. Experience shows that problems tend to arise not because providers do not have adequate procedures in place, but because people often do not agree with the decision that is reached.
In most cases of harassment and sexual misconduct, there will be one party who is disappointed with the outcome, and unfortunately, there is no legal process that can get around that. Ultimately, a greater focus on prevention through awareness-raising, education and training will reap greater dividends than ever-more complex procedures.
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