Misconduct, harassment, extremism and free speech within the law

These topics continue to be an area of focus for the higher education sector, and in some instances can raise complex questions for institutions.  Just this week we have seen the following publications:

  1. The Office for Students’ consultation on freedom of speech

The latest consultation, which closes on 26 May, sets out the OfS’s proposals for:

  • Guidance for the governing bodies of registered providers and colleges of the universities of Cambridge and Oxford and for regulated students’ unions (“regulated entities”) on the new and updated freedom of speech duties that are expected to come into force on 1 August
  • Amendments to the regulatory framework
  • Recovery of costs in relation to justified / partly justified complaints under the new complaints scheme, and the imposition of monetary penalties on students’ unions.

The guidance, in the shape of a proposed Regulatory Advice 24, includes examples of what the OfS considers might be reasonably practicable steps for regulated entities to take to secure free speech within the law in relation to:

  • admissions, appointments, employment and promotion
  • codes of conduct
  • complaints and investigation processes
  • free speech code of practice
  • free speech complaints scheme
  • governance
  • research
  • speaker events
  • teaching
  • training and induction.

What is reasonably practicable will vary depending on the particular circumstances and the resources of the regulated entity.

  1. Universities UK case studies on alleged student misconduct

Universities UK has published a supplemental note to the 2016 guidance “How To Handle Alleged Student Misconduct Which May Also Constitute A Criminal Offence”.  The latest case studies and guidance explore a number of topics that those experienced in dealing with investigations and disciplinary / fitness to practise matters will be familiar with.  These include:

  • Careful communication with students
  • Deciding which procedure to use
  • Precautionary action while investigating
  • Students on placement
  • Information gathering and sharing
  • Investigations
  • Representation at hearings
  • Hearings

Common themes and moving parts

Some common themes from both publications include:

  • the need for institutions to properly resource their handling of these matters, including through staff training;
  • ensuring policies and procedures and other relevant documentation are kept up to date and aligned;
  • the importance of considering each matter in light of the particular circumstances whilst also having regard to all relevant legal frameworks, which might include matters such as equality law, human rights, consumer law, data protection and confidentiality;
  • the need for careful consideration, consistency and timely action. 

There also continue to be a number of moving parts in these and related areas of public debate; this week the Khan Review has made other recommendations for universities and charities in relation to what it terms “freedom-restricting harassment”.  

The sector is also still waiting to hear what shape any further regulation might take following the OfS’s 2023 consultation on regulating harassment and sexual misconduct. 

And whilst the Government’s recent decision to publish an updated definition of extremism was accompanied with a statement that “Non-central government institutions, such as arms-length bodies, higher education institutions and independent organisations including the police and CPS, will not be obliged to adopt the definition or apply the engagement principles initially.”, there may be further developments in that space also.

If you would like to discuss any related matter in the context of your institution, please get in touch with your usual Mills & Reeve contact, or a member of our highly experienced education law team.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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