The OfS consultation on harassment and sexual misconduct in higher education

The OfS consultation on harassment and sexual misconduct in higher education

On 9 January the Office for Students (OfS) published a consultation on its proposals for regulating how registered providers handle allegations of harassment and sexual misconduct affecting students. The proposals are twofold. The first is that the OfS will publish a statement of expectations on how it expects institutions to prevent and/or deal with harassment and sexual misconduct. It will then monitor the impact of this statement through an open call for evidence (to take place within two years) to determine whether the expectations have achieved the desired goal, whether the expectations need to be adapted or whether further regulatory action is needed. It will also consider data from reportable events and/or third parties in assessing what further action is needed.

The second is that the OfS intends to regulate how providers handle allegations of harassment and sexual misconduct by students through its existing conditions of registration, particularly B2 (quality), C1 (guidance on consumer protection law) and possibly E2 (management and governance). It will do this by the expedient but interpretively radical step of choosing to treat the word “complaint” in condition B2 and in the CMA guidance for higher education providers as including allegations of misconduct against fellow students. This is not how the concept of complaint has been interpreted in the sector previously, which has tended to relate to acts and/or omissions by institutions: see for example the definition of qualifying complaint in the Higher Education Act 2004, and the longstanding distinction drawn by the OIA between complaints and appeals on the one hand and disciplinary procedures on the other.

Potential problem areas

The proposals set out the definitions the OfS will apply in assessing compliance with its expectations and registration conditions. These definitions refer to statutory provisions and in some cases criminal offences. There is a risk that institutions may find themselves being expected to apply these specific definitions when handling complaints. That could be problematic for a number of reasons. As the UUK guidance for institutions on handling allegations of misconduct that also constitute criminal offences made clear, “the nature and scope of an internal disciplinary process and the nature and scope of a criminal process are fundamentally different. It is therefore important to maintain a clear distinction between them”. The OfS definitions appear to blur that boundary for no discernible benefit. The UUK guidance offered perfectly sensible wording for disciplinary offences which made it clear that they were not to be confused with similar offences. We have seen numerous examples of students being “charged with rape” by an institution (see for example this article in Times Higher Education), which then leads to a tendency to over-lawyer the whole process and diminishes the ability of the institution to act. It would therefore be better for the OfS to reinforce that it is not expecting institutions to investigate breaches of the law, rather than implicitly requiring them to do so.

The second area of concern is that the OfS proposals appear to impose obligations on institutions to act in circumstances where it is not reasonable for them to do so, and in circumstances where they may have no control. The consultation states that the expectations will apply to students on placement and on years abroad, but if the complaint is about the employee of a placement provider or staff or students of a partner institution, the English institution may not have the power to take any action. If adopted this may require additional contractual rights to be agreed with partners to enable action to be taken, and not all partners may agree to this. This could result in a reduction in such opportunities which would affect the student experience in other ways.

Similarly, the proposals expect institutions to act on allegations made by students against visitors to campus, and again there is a big question over what action institutions can reasonably take against the very wide range of “visitors” who come onto their campus.

It may be reasonable to expect institutions to support students who are affected by harassment/misconduct perpetrated by third parties, including through pastoral support, academic allowances or in bringing complaints against those third parties under the appropriate procedures (whether the partner’s or the relevant criminal justice system), or by terminating their relationship with third parties who fail to treat their students with respect or keep them safe, but requiring institutions to investigate and take action themselves is not in our view appropriate.

The OfS expectations themselves are not unreasonable or unrealistic in our view, although how they would apply in the scenarios described above is a concern. The effect of the expectations is likely to be both an increase in cases being investigated by institutions, and more challenges to investigations and processes that are considered sub-optimal by complainants and respondents alike. Therefore, institutions will need to take swift and thorough action to ensure that they are in a position to demonstrate compliance with the expectations.

The consultation can be found here and closes on 27 March 2020.

Contact our education team, or Smita Jamdar directly on 07909 925946 for further advice.

For advice or guidance on any other commercial or legal issues, a member of our team can take you through everything. Click here to discuss.