New regulatory requirements to respond to harassment and sexual assault on campus

The Office for Students (OfS) launched a consultation today on a new set of expectations for English Higher Education Providers for their management of complaints relating to harassment and sexual assault. 

This follows the move away from the former guidance issued by the Committee of Vice Chancellors and Principals (CVCP) in 1994 on the handling of serious student disciplinary matters. In that CVCP guidance, it was suggested that universities should not investigate a student disciplinary matter themselves where the facts also gave rise to a potential concurrent jurisdiction as a matter of criminal law. Instead, universities were to encourage students to report their allegations to the police for investigation and possible prosecution through the criminal justice system.

In October 2016, Universities UK (UUK) published new guidance: "Changing the Culture: Report of the Universities UK Taskforce examining violence against women, harassment and hate crime affecting university students."

The OfS consultation document references that the 2016 UUK report took into account a number of developments which called for a new approach. This included extensive evidence on: violence against women and sexual harassment affecting students; homophobia and gender-identity based harassment and hate crime; harassment / hate crime on the basis of religion and belief; hate crime on the basis of other characteristics. The UUK report also noted legal developments, including the coming into force of the Human Rights Act 1998 and the Equality Act 2010.

The OfS is seeking responses by 27 March 2020 to its consultation on its proposed new regulatory approach in this important area. Following the outcome of that consultation, OfS proposes that its regulatory requirements will come into force this summer and that it will then evaluate compliance after two years.

In summary the OfS has set out a "Statement of expectations", as follows:

1. 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. They should set out clearly the expectations that they have of students, staff and visitors.
2. 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.
3. Higher Education providers should engage with students to develop systems, policies and processes to address harassment and sexual misconduct.
4. Higher Education providers should implement adequate and effective staff and student training to raise awareness of, and prevent, harassment and sexual misconduct.
5. Higher Education providers should have adequate and effective policies and processes in place for all students to report and disclose incidents of harassment and sexual misconduct.
6. Higher Education providers should have a fair, clear and accessible approach to taking action in response to reports and disclosures.
7. Higher Education providers should ensure that students involved in an investigatory process have access to appropriate and effective support.

There are additional elements to each 'expectation' and a number of important considerations. OfS notes at 6a for examples that it expects "providers to investigate (for example as a disciplinary matter) complaints made in relation to any of its registered students". It goes on to confirm at 6c that an investigatory process "must be demonstrably fair, independent, and free from any reasonable perception of bias." As a matter of public law, the process must be fair for all concerned, taking into account the gravity of the allegations. The decision-making by a disciplinary panel will require the determination of the relevant facts upon which a complaint is made. Further advice is recommended of the specific circumstances of any case.

The OfS consultation document confirms that it will use its regulatory powers in line with the intervention facts sets out in the OfS Regulatory Framework and that it will consider an intervention if it identifies an increased risk of a future breach of conditions of registration B2 (Quality) or C1 (Consumer protection law).