Office for Students (OfS) statement of expectations to prevent and address harassment and sexual misconduct

The OfS has published an updated statement of expectations relating to what steps it thinks universities should take to deter and deal with harassment and sexual misconduct. It follows a consultation which ran from January 2020, and is published as the Everyone’s Invited campaign has highlighted numerous cases of harassment and assault in universities across the country. The statement provides a set of standards that colleges and universities are encouraged to use to develop and implement effective systems, policies and processes to prevent and respond to incidents of harassment and sexual misconduct. The statement covers sexual misconduct online, as well as harassment connected to protected characteristics such as race, religion, disability and sexual orientation. Alongside the statement, the OfS has published a blog by its chief executive Nicola Dandridge and a range of previously published information and resources, including some from Advance HE.

Statement of expectations

Blog

Resources

At-a-glance:

• 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 affecting students. They should set out clearly the expectations that they have of students, staff and visitors, and review their relevant policies by this summer (p4)
• 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 (p4)
• A systematic approach to harassment and sexual misconduct should be embedded within existing governance structures. Committees and working groups set up to tackle these issues should form part of the governance structure, the governing body routinely being given information on the issue for consideration and action: for example, any prevalence data collected, reported incidents and cases and outcomes of cases, as well as reviews and evaluation of the provider’s approach to harassment and sexual misconduct and its impact on students (p4)
• Steps should be taken to ensure that those with a governance role have a clear understanding of the issues that are relevant to their responsibilities and, where appropriate, their obligations under the Public Sector Equality Duty. This could be achieved for example through appropriate training and briefing of relevant staff or members of the provider’s governing body and committees (p4)
• Providers should engage, with appropriate support and safeguards, with students and groups of students, including those with protected characteristics, to develop and evaluate systems, policies and processes to address harassment and sexual misconduct (p5)
• Adequate and effective staff and student training should be implemented with the purpose of raising awareness of, and preventing, harassment and sexual misconduct. It should include how to respond to incidents, encouraging reporting and cover areas such as covering areas such as bystander initiatives, consent and receiving and handling disclosures (p5)
• Providers should have adequate and effective policies and processes in place for all students to report and disclose incidents of harassment and sexual misconduct, including anonymous and/or third party reporting. Policies and processes for reporting should be assessable eg  included in student handbooks, featured on the provider’s website and social media and as part of early communication with prospective students (p5)
• Students, where appropriate, should be signposted or referred to the police, NHS, sexual assault referral centres or hate crime reporting centres, or to local specialist services such as Rape Crisis, if specialist support is needed. Providers should have an understanding of and minimise any barriers to reporting and disclosing incidents that may exist for particular groups of students (p6)
• Higher education providers should have a fair, clear and accessible approach to taking action in response to reports and disclosures. It is anticipated that providers investigate complaints (for example as a disciplinary matter) and have a visible and easy to understand policy which sets out the circumstances in which disciplinary proceedings would be initiated against a student, staff member or visitor (including member of the governing body) where relevant, and how the process addresses disciplinary issues that may also constitute a criminal offence.
• Visible and easy to understand information should be provided for all staff and students about the investigatory process, decision-making process, associated timescales and factors which may impact on timescales. It should be explicit about the range of actions that may result from the  investigation including information about any appeal process (p6)
• The investigatory process should be demonstrably fair, independent, and free from any reasonable perception of bias. This may include consultation with appropriate expertise. Disciplinary hearings and appeals should be conducted by a panel that is free from any reasonable perception of bias, is diverse and includes student representatives where appropriate. All panel members should be appropriately trained in handling complaints of this nature and be independent from the investigatory process and specific case being considered. There should be a clear explanation of how confidential information will be used and shared as well as the protections in place for individuals, within investigatory and disciplinary processes (p6)
• Providers should ensure that students involved in an investigatory process have access to appropriate and effective support. Both the reporting and responding parties should 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 (p7)
• Procedures should ensure that all reports of incidents of harassment and sexual misconduct are dealt with within a clearly communicated and reasonable timeframe. Reporting and responding parties should be 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 the complaint (p7)

Implications for governance

Governors will be aware of the growing body of evidence across the UK of the extent and scale of harassment and sexual misconduct in the higher education sector, not least the recent Everyone’s Invited revelations, as well as claims of inadequate measures within some HE providers to deal with it. Evidence includes NUS surveys and campaigns, an Equality and Human Rights Commission inquiry and work undertaken by the UUK’s Violence Against Women, Harassment and Hate Crime Task Force, culminating in its ‘Changing the Culture’ series of reports. According to the OfS, there is “evidence of a lack of consistent and effective systems, policies and procedures in place to respond to reports of such incidents”. While there has been some progress in tackling the issues, an independent evaluation conducted by AdvanceHE showed that there was still a significant level of variation in the response by providers, including by their leadership and governance teams.

The Statement of Expectations is described by Nicola Dandridge in her blog as a yardstick which can go a long way to ensuring students have confidence that cases of harassment and sexual misconduct will be properly addressed.

The statement highlights the important role that governing bodies need to play to ensure their institution’s approach to harassment and sexual misconduct is adequate and effective.

The first three bullet points in this News Alert above cover some of the measures outlined in the statement aimed at ensuring that governing bodies are aware of the risks relating to harassment and misconduct and how to effectively mitigate against them. This includes ensuring committees and working groups that tackle these issues are part of governance structure, keeping governing bodies aware of data on harassment and sexual misconduct, including reported incidents, cases and outcomes and effective training for governors.

One of the vital duties for governing bodies in this area is reviewing and evaluating the provider’s approach to the issue and its impact on students.

In her blog, Dandridge confirms that at this stage, the OfS will not formally connect the statement of expectations to specific conditions of registration. It sets out expectations, not regulatory requirements. The OfS will not, therefore, seek to use its enforcement powers in relation to the statement. Instead, institutions are “encouraged to review and renew their systems, policies and processes in light of the statement”.

The OfS does say, however, that as part of its wider work to review and reset its regulatory requirements it will consider, later this year, whether it needs to update its regulatory requirements that relate to consumer protection law. As part of this process, it will look at requirements relating to complaints-handling arrangements, and whether to connect the statement of expectations to the requirements expressed in conditions of registration.

The regulator warns that this would mean that it could use enforcement powers where universities and colleges do not have “robust, fair and effective complaints procedures in relation to harassment and sexual misconduct”. Any such changes would be subject to further consultation.

In the meantime, the OfS points out that if it receives information about a provider relating to harassment or sexual misconduct, for example through a notification from a student, it can carry out further “engagement” or investigation to determine whether a provider risks breaching, or has breached, one or more of its existing conditions of registration, such as those covering the effectiveness of management and governance arrangements.

Governing bodies should also be aware that the OfS proposes to evaluate the impact of the statement of expectations within two years. It will do this through a call for evidence, asking interested parties to come forward with insights and evidence of whether practice has improved. In her blog, Nicola Dandridge says OfS will “particularly want to hear from students and students’ unions that things are changing for the better”. The evaluation will consider whether the expectations themselves need to be changed and whether further direct regulatory intervention may be needed.

Another area of consideration for governing bodies is how the statement might relate to providers responsibilities around the hot topic of academic freedom and free speech. OfS says it will be for providers to determine how to apply the statement of expectations in their own context but points out that, as published in EHRC guidance in February 2019, exposure to course materials that students might find offensive or unacceptable is unlikely to constitute harassment.

Finally, governors may be interested to also refer to social media materials produced to help universities and colleges across Scotland support staff and students who might be experiencing gender-based violence and abuse while social distancing measures are in place due to Covid-19. Production of the materials, including three webinars, was led by Advance HE in partnership with the charity #EmilyTest, CDN and Universities Scotland, and the project was funded by the Scottish Funding Council.