Weightmans take a look at the latest guidance published by OfS regarding harassment and sexual misconduct within the higher education sector
University culture in response to all forms of harassment and sexual misconduct reflects the values, beliefs and norms for students and staff. This is an important and ongoing issue. The Office for Students’ new registration condition on harassment and sexual misconduct for students will require a review of approaches in managing students and staff. There are legal changes in both areas, with different timescales, but to largely the same end and it makes sense to not consider the two sides in isolation.
On 31 July 2024, the Office for Students (OfS) updated its guidance on harassment and sexual misconduct with details of forthcoming condition requirements Prevent and address harassment and sexual misconduct - Office for Students). The new registration condition will come into force on 1st of August 2025 giving universities an academic year to build on the “adequate” progress to date in this area. The OfS requirement will require institutions to assess the culture and review its effectiveness in dealing with harassment and sexual misconduct. The values, beliefs and norms of campus culture around behaviour are not exclusive to students and the HE tendency towards a silo approach will be counterproductive. Student services will be focusing on refining their response model to make a “significant credible difference” to protect students from harassment and sexual misconduct. In parallel, Human Resources will be looking at new legislative requirements including the positive obligation to take “reasonable steps” to prevent sexual harassment of their employees (26 October 2024) and taking account of the ban on NDA’s where they cover allegations of harassment or sexual misconduct (1 September 2024).
The new OfS condition arises from concerns that some universities are taking inadequate action in response to complaints of harassment and sexual misconduct. The guidance summarises what universities and colleges should do to prevent and address these complaints from students. The requirement for a university statement on how complaints will be addressed will give students (and others) involved in any form of harassment or sexual misconduct complaint, a clear understanding of what they can expect from the university. It will be good practice to provide this information for students and staff.
Where the complaint is about a member of staff, managers will navigate the complaint and the employment issues with support from Human Resources. However, there are clear process parallels with processes in managing student-related cases. The university response in both scenarios engages considerations of responsiveness, information sharing with relevant people, risk assessment, investigation etc. An objective review of casework histories and current processes (from both a complainant and ‘complained about’ perspective) will inform improvements.
The work to prepare for compliance will involve a whole campus perspective. The culture change to achieve an effective response should take account of student and staff processes with a view to achieving synergy where possible.
For further detail on the updated guidance from the Office for Students, contact our education solicitors.
