The Office for Students (OfS) is currently consulting on its proposed new regulatory requirements for English higher education providers in respect of harassment and sexual misconduct. The regulatory requirements would be enforceable by OfS using its various regulatory measures and sanctions pursuant to the Higher Education and Research Act 2017. These would be in addition to the legal obligations which are enforceable against those responsible as a matter of civil and / or criminal law. The regulatory jurisdiction of the OfS extends to students at registered English higher education providers. This includes all students for whom the English higher education provider is the awarding body, including students at delivery-providers in sub-contracted arrangements, students on placements and students on courses overseas.
Harassment is defined by OfS as:
"Harassment includes unwanted behaviour or conduct which makes a person(s) feel offended, intimidated or humiliated if it occurs because of, or connected to, one or more of the following protected characteristics: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation (as defined by Section 26 of the Equality Act 2010). We would read harassment to also include any incidents of physical violence towards another person(s) on the basis of a protected characteristic. Under our definition, we will understand harassment to include hate crimes, as defined by the Home Office in 2016."
Section 26 of the Equality Act 2010 makes it unlawful harassment for a person to engage in unwanted conduct related to a protected characteristic and the conduct has the purpose or effect of violating the other person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for the other person. Section 26(4) requires a court in deciding whether the conduct has such an effect to take into account a) the perception of the other person; b) the other circumstances of the case; and c) whether it is reasonable for the conduct to have that effect.
Sexual misconduct is defined by OfS as:
"Sexual misconduct relates to all unwanted conduct of a sexual nature, including, but not limited to:
i. Sexual harassment (as defined by Section 26(2) of the Equality Act 2010)
ii. Unwanted conduct which creates an intimidating, hostile, degrading, humiliating or offensive environment (as defined by the Equality Act 2010);
iii. Assault (as defined by the Sexual Offences Act 2003);
iv. Rape (as defined by the Sexual Offences Act 2003);
v. Physical unwanted sexual advances (as set out by the Equality and Human Rights Commission: Sexual harassment and the law, 2017)
vi. Intimidation, or promising resources or benefits in return for sexual favours (as set out by the Equality and Human Rights Commission: Sexual harassment and the law, 2017)
vii. Distributing private and personal explicit images or video footage of an individual without their consent (as defined by the Criminal Justice and Courts Act 2015)."
See our earlier blog post on the proposed OfS statement of expectations for English higher education providers.
The OfS consultation draws upon a number of earlier reports including the significant report of the inquiry conducted by the Equality and Human Rights Commission and published in October 2019: Tackling racial harassment: Universities challenged.
The OfS consultation refers to evidence concerning the experience of: Muslim students; Jewish students; LGBT students and students who have experienced sexual assault or harassment.
The OfS consultation invites responses by 27 March 2020. Subject to the consultation outcomes and other factors, the OfS proposes that its new regulatory requirements would come into effect from "summer 2020".
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