It’s 1-0 to students as OfS introduces tough new regulation on safety on campus

The Office for Students (OfS) has published its consultation response on the introduction of a new condition of registration on harassment and misconduct.

Despite “significant progress” in recent years, OfS says there is still further to go in tackling harassment and sexual misconduct. The aim is secure greater consistency of approach – in the way in which harassment and misconduct allegations are handled, and support is provided.

As well as an independent summary of consultation responses, it’s accompanied by the results of its promised prevalence survey pilot and some separate polling carried out by Savanta.

That says that six in ten respondents say they have experienced at least one type of sexual harassment since being a university student, that only one in five victims of sexual harassment sought support from their university, and that one in six students have had a staff member attempt to pressure them into an intimate relationship in the last year.

Only 12 institutions took part in OfS’ prevalence survey, and none were from the Russell Group, so we do have to be careful about making broad generalisations about the sector. Its finding that 20 per cent of students had faced harassment or sexual misconduct in the last year seems low compared to other studies, including one which found half had experienced sexual violence, one which found 63 per cent of respondents had experienced an unwanted sexual experience, and one which found 55 per cent of respondents had experienced some form of sexual or gender harassment whilst studying at university.

The good news is that of those students who have experienced harassment or sexual misconduct and who did report it to their institution, more than half thought the response was “good” or “very good”, and only a fifth thought it was “poor” or “very poor”, which means that providers can have the capacity, capability, and infrastructure to deal with harassment and sexual misconduct adequately.

OfS has not yet confirmed whether it will be doing any data collection at a sector level, which is a shame, as it would be very helpful—both for the regulator and institutions—for a whole host of reasons, not least for institutions to be able to observe each other and swap best practices.

Secretary of State for Education and Women and Equalities Minister Bridget Phillipson has welcomed the publication, calling the findings of disproportionate impact on female students “appalling” – adding that the refocused role announced for OfS following David Behan’s independent review will allow the regulator to spend more time for “standing up for students.”

Here we’ve taken a look at the consultation, and OfS’ decisions on a range of often contested issues in it.

Many a winding turn

The 4.5-year journey began (in the regulation world, at least, given staff and students have been campaigning on this for decades) when Sunday was still just considering running to be president of her student union, and Livia was still a student.

In 2021 OfS published a voluntary statement of expectations for preventing and addressing harassment and sexual misconduct – but 18 months later after an independent evaluation, then OfS chief executive Nicola Dandridge announced that while there had been some good policies, processes, and systems established, the sector had not made adequate progress – and so OfS announced a consultation on introducing a new condition of registration on harassment and misconduct.

It was a welcome (for many) u-turn on what OfS had until then tended to argue was usurped by the need to protect institutional autonomy by allowing self-regulation instead. There has never been a statutory requirement for higher education institutions to take specific steps to address harassment and sexual misconduct.

A global pandemic, four prime ministers, and seven secretaries of state for education later and we finally have the findings of the sector consultation and OfS’ decisions. Sunday wrote a quick recap in this piece on what OfS proposed when we were told the consultation would be out in May.

Unusually for an OfS consultation, the process generated a high level of student engagement, which David Smy, Deputy Director of Enabling Regulation, described back in April as “unusually high” and “higher than on any other condition. If nothing else, that suggests a motivated student base with which to carry any work arising from the new duties – providers who responded that they are concerned about resources and burden should take note, utilise, and collaborate.

Sunday has long argued that policy development around harassment and sexual misconduct ignores student voice or relegates them to survivor status only with little to no input in the actual development. So it’s also worth noting the areas where there was an apparent split between what students feel will protect them, and what providers felt were reasonable regulatory requirements:

Almost all responding students or student bodies agree with [the proposal to introduce a new condition of registration focused on tackling harassment and sexual misconduct] (40 of 42 agree). In contrast, many collective responses from higher education providers disagree (68 out of 97), as do most sector and HE professional bodies (eight of ten).

Similarly on the universal, standard and mandated definition of sexual misconduct:

Agreement levels are higher among students and student representative bodies (31 of 38 agree). In contrast, disagreement levels are higher among collective provider responses (58 of 94), sector and HE professional bodies (seven of 10) and advocacy groups (six of seven).

And on the proposal that providers should have a “single document”:

The majority of individual respondents from providers (21 of 36 respondents), students and student representative bodies (25 of 38) and advocacy groups (seven of 10) agree with aspects of the proposal. In contrast, most collective responses from providers (68 of 96) and sector and HE professional bodies (seven of ten) indicate disagreement.

At the press briefing OfS confirmed that the ban on non-disclosure agreements would have immediate effect (meaning from September 2024), while other requirements will be expected to be in place by September 2025. This is to ensure institutions have the time to draft the policies, engage with students and staff unions, and implement them.

The condition of registration

The first big question was whether OfS should be regulating in this area at all. Most respondents agreed with a new condition of registration, with student respondents specifically believing it will directly address providers’ inadequate action when responding to reports, and assure students and prospective students that their reports will be taken seriously. That was pretty consistent across types of providers and student demographics.

Nevertheless, concern over “regulatory burden” was in the mix. Almost one in ten responses felt it was not OfS’ place to make these sorts of demands of universities, arguing that providers should be monitored on their quality of teaching rather than “pastoral or welfare matters” – an argument that ignores how interrelated academic and “pastoral or welfare matters” are when it comes to student success, especially if we’re talking about staff-student relationships.

There were echoes of an old debate – concerns that the regulator is inciting providers to wade into criminal proceedings, or that the condition would just duplicate exciting regulations. And as ever, there were concerns about the approach being too prescriptive, specifically for “providers with large numbers of mature students, those that deliver their courses online, are part of blended HE/FE3 campuses or have specific PSRB4/industry requirements related to personal contact.”

It would be interesting to know what respondents felt made mature students make these regulations more complex – the fact that it was mentioned alongside online courses suggests that mature students may be less likely to be on campus, and so the real concern is jurisdiction in digital space.

On implementation, around two in three respondents disagreed with OfS’ proposal to enforce the proposals three months after a final decision is published, with 6-12 months being referred to as more realistic for designing policy, training state and students, and finalising the “single document”. In the end, OfS has given providers a deadline of September 2025. Let nobody ever accuse the sector of moving too quickly.

Defining moments

The first proper OfS proposal was on providing clear definitions of harassment and sexual misconduct. Getting the definition of harassment and sexual misconduct is important – not least because it manages student expectations. Sunday has long argued that different generations define these in other ways as our understanding develops, leading to confusion in investigations, dissatisfaction in outcomes, and potentially re-traumatised survivors.

Defining what constitutes these acts can be a strong deterrent for would-be perpetrators who would otherwise see nothing wrong with their intended behaviour – although Harriet Smailes recently argued on here that by overlooking the establishment of a clear definition of “consent” OfS has set providers up for these problems anyway.

What we now have is a universal, sector-wide definition of “harassment” lifted from the Equality Act 2010 and the Protection from Harassment Act 1997. The EA2010 definition takes the following into account:

the perception of the person who is at the receiving end of the conduct; the other circumstances of the case; whether it is reasonable for the conduct to have that effect.

The Protection from Harassment Act 1997 is included because OfS wants to see all students protected from harassment and supported if they experience harassment, whether or not this conduct is in relation to a protected characteristic and therefore, already captured by the Equality Act 2010.

The majority – 57 per cent – supported this, agreeing with comments noting that deferring to current legislation provides credibility and consistency. And OfS’ confirmed definition of “sexual misconduct” – which takes section 26 of the Equality Act 2010 as a starting point – is now any unwanted or attempted 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, and
• ii. assault as defined by the Sexual Offences Act 2003, and
• iii. rape as defined by the Sexual Offences Act 2003.

Some comments from student representatives expressed concern that legal jargon may be inaccessible to student audiences – as well as queries about the jurisdiction institutions have in determining criminal acts and concerns around the burden of proof (a criminal court requires evidence beyond a reasonable doubt, whereas a provider can investigate a complaint on the balance of probabilities).

Others disagreed with using legal terms on the basis they are inaccessible to students and lay people, or that legalistic language may deter reporting of less serious sexual misconduct, which is not perceived as criminal.

Regular readers will know that delegating student conduct matters to the criminal justice system is reminiscent of the Zellick Principles – which caused all kinds of issues outlined back (where some argue this all started) in the 2009 NUS Hidden Marks Report. Deferring to UK legislation also raises questions about how this applies to international partners, franchises, or student work placements in different countries. So broadly, the definitions stay, but with legal terms largely removed.

One big long document

Of particular controversy was the idea that OfS would require each provider to create and publish a single “document” with “minimum content requirements”, explaining arrangements for handling incidents of harassment or sexual misconduct, support to those involved in incidents (both complaining and responding parties), training provided to all students and all staff about what constitutes harassment and sexual misconduct and, in the case of staff, how to handle disclosures, formal reports, and investigations.

Students were pretty on board with this idea – believing it would ensure that institutions were held accountable for adhering to standards, bring consistency and transparency, and build awareness of policies and procedures amongst students, staff, and members of the public, in turn encouraging reporting.

Providers were less convinced – there were concerns about oversimplification, a desire instead to signpost to existing policies and procedures, and some emphasised that the document should use a trauma-informed approach to ensure it is accessible to students and staff when they need support.

Probably the most compelling concern was the idea that one document would end up being “all things to all” – i.e. a guide for staff, a signpost for students, and evidence of compliance for OfS – and in being so, not great at any of them.

OfS has relented here – what is now to be a “single comprehensive source of information” nevertheless retains a need to clarify how often the materials will be updated, and keeps a “prominence principle” in terms of where the materials are published.

Education, awareness and support

Another area of controversy was OfS’ proposal on “minimum content principles” – and on the usual see-saw of students liking what they saw and providers finding them to be too prescriptive, the regulator has stuck with:

• The steps it is taking to protect students from harassment or sexual misconduct, including steps that may reduce the likelihood of harassment or sexual misconduct taking place.
• Its arrangements for reporting and investigating incidents of harassment or sexual misconduct, including how it will handle students’ data and how students are informed about the decisions made following investigations into harassment and sexual misconduct.
• How students and staff will receive appropriate teaching or training on subject matter relating to incidents of harassment or sexual misconduct.
• How all students, including potential victim-survivors and alleged perpetrators, will be supported.

Another area of concern surrounded proposals for training/education for students around harassment and sexual misconduct, and bystander training. There were well-versed concerns about what this means for victim and survivor involvement in such activity – and the impact it would have on these students, as well as ensuring attendance/engagement (or consequences for those who do not complete it).

What OfS has done here – and throughout the “minimum content” is go for a kind of “comply or explain” approach – the key requirement is to take “multiple steps” which could (individually or in combination) make a “significant and credible” difference in protecting students, including, but not limited to, steps that may reduce the likelihood of harassment and/or sexual misconduct taking place.

That’s reminiscent of the access and participation principles – OfS is saying that providers need to research it, think about (and work with) their own students, shape and target appropriately (ie who’s most at risk in our provider?), and be able to demonstrate that their approach will work. Of course unlike APPs, there’s no submission and approval, so OfS has been fairly detailed in what it thinks would constitute compliance too.

On training, OfS expects training to be mandatory, that it should include training for potential witnesses of sexual misconduct (bystander training) and training on sexual consent, that it’s underpinned by credible evidence, and that its effectiveness is evaluated. OfS’ “non exhaustive list” also includes that it is designed and delivered by those with “credible and demonstrable” expertise, and that a provider should use its judgement in relation to individual students who may have good reasons for not participating.

That minimum content list – which a provider needs to both think about its approach to and target – is finalised as follows:

• the ways in which students, staff and other persons are able to report behaviour that may amount to harassment and/or sexual misconduct to the provider;
• how information received or obtained in connection with incidents of harassment and/or sexual misconduct will be handled sensitively and used fairly;
• how the provider ensures that students are appropriately informed to ensure understanding;
• the appropriate support that will be provided to students in response to incidents of harassment and/or sexual misconduct. This includes, but is not limited to, students who have alleged and/or experienced incidents of harassment and/or sexual misconduct and actual or alleged perpetrators;
• how the provider ensures that staff and other persons responsible for receiving information about, investigating, or taking decisions on, matters relating to incidents of harassment and/or sexual misconduct are appropriately trained;
• how the provider ensures that investigations undertaken and decisions made in respect of incidents of harassment and/or sexual misconduct are credible, fair and otherwise reflect established principles of natural justice;
• how the provider ensures that persons directly affected by any decisions made in respect of incidents of harassment and/or sexual misconduct are directly informed about the decisions and the reasons for them. This includes, but is not limited to, persons who have alleged and/or experienced incidents of harassment and/or sexual misconduct and actual or alleged perpetrators.

Capacity and resources

This requirement that the provider must have the capacity and resources necessary to facilitate compliance with the condition echoes the 2016 Universities UK (UUK) Changing the Culture Taskforce report, which advises that all university leaders give priority and dedicate resources to tackling harassment and sexual misconduct. Again, students were more on board with this than provider respondents.

The most significant opposition to this proposal came from small and specialist providers, who expressed concerns about their capacity and the financial feasibility of a rollout. This is a challenge, but arguably, small and specialist providers are precisely the institutions that need harder regulation on their efforts here, given the spate of poorly managed harassment cases at drama schools.

There are funding concerns at a broader level too given the sector is facing financial constraints. Some believed it was challenging institutional autonomy or forcefully redirecting funding from other areas of the student experience.

Some requested clarity around involvement from third parties such as the NHS, i.e. GPs and counselling services, and expressed concerns about “the small pool of expertise available in the sector.” They also questioned whether OfS would be providing funding for institutions that need it.

Nothing came of those concerns – and OfS has stuck steadfast to the idea that if you’re providing HE, you need to budget the time and money to deliver these requirements.

Freeze peach

This one – do all of the above in a way that’s compatible with the Free Speech Act – is all bit up in the air because the new Labour government paused the implementation of the Higher Education (Freedom of Speech) Act 2023 last week. The consultation response still regularly references the Act and how institutions can ensure they comply with the law and regulatory duties. Understandably, OfS is still working under the assumption that the Act might still happen until the new government confirms otherwise. That said, on the press call OfS reminded us that even without the Higher Education (Freedom of Speech) Bill, these obligations exist under the Education (No. 2) Act 1986, Part IV.

There was a provider-student disparity here again, this time in reverse. But there wasn’t much to debate here, and so OfS has stuck with its condition that providers must comply with the requirements in a manner consistent with freedom of speech principles, using the following confection – one that is easier to define for lawyers than it will be for students:

• This applies respect of decisions about whether or not its policies and procedures will include content on matters relating to harassment to the extent that such content:
• a. goes further than its obligations under the Equality Act 2010 or any other legal requirement (for example, by adopting or applying the Equality Act 2010 concepts of harassment to conduct related to speech by a student); and
• b. could reasonably be considered capable of having a negative impact on, or having the object or effect of restricting, freedom of speech within the law and/or academic freedom.

NDAs

OfS had proposed to prohibit non-disclosure agreements that forbid students from talking about incidents of harassment or sexual misconduct that they may have experienced. It’s going ahead with that.

Agreement levels were particularly high among students and student representative bodies, relatively lower among collective responses from providers, and so OfS is going ahead.

Staff-student relationships

The proposal that really caught the eye of the press back on January 2023 was a requirements in relation to personal relationships between students and “relevant staff.”

OfS had proposed two different options.

• Option A (OfS’s preferred option) would have required relationships between students and relevant staff – for example, those involved in teaching students of marking their work) to be reported and a register of relationships maintained. 62 per cent supported this, with many feeling that Option B is an overreach of power.
• Option B was a ban on relationships between students and relevant staff members – 22 per cent supported this, with many noting a persistent inherent power imbalance in staff/student relationships.
• And as well as the split in responses (students in favour of B, providers less so) respondents raised questions over the “relevant staff” thing.

The result? Strongly flavoured fudge:

We consider that a ban on intimate personal relationships between relevant staff and students would generally be more appropriate and effective than a register, and our condition explicitly identifies this as a step that would meet our requirements.

The requirement?

To proceed with means that a provider is required to include in its single comprehensive source of information one or more steps which could make a significant and credible difference in protecting students from any actual or potential conflict of interest and/or abuse of power.

Put another way, OfS is saying that an easy way to meet the requirements is to outright ban staff-student relationships. This is not an argument we are unfamiliar with. Since the proposal, plenty of registrars and HR professionals have noted that if a compulsory register is introduced, they would push their institutions to ban staff-student relationships.

A staff-student relationship register has a whole host of headaches for an institution. It would be highly bureaucratic and admin-intensive – and therefore costly – and essentially more regulatory burden. Five responders said that their institution prohibits relationships between staff and students, and the approach has proven effective.

A small number (nine per cent) specifically felt that Option B would mean preexisting relationships would be forcefully terminated – which has never been the case and probably should have been clarified.

While some students believed a register could encourage honesty and transparency, others identified the danger that it creates a two-tier system of protection. Students who feel comfortable disclosing information about their sex life to their institution will have institutional oversight. Students who do not – LGBT students who are not “out”, for example, or international students who come from countries where it is illegal or dangerous to be so, may not disclose a relationship with a member of staff – and we are back to square one.

Providers were worried about privacy and data handling, as well as potential interference with Article 8 of the Human Rights Act, which concerns the human right to a private life, and the view that a register would have no effect on the power imbalance and subsequent capacity for abuse or misconduct within relationships, with some respondents noting the existence of register does little to discourage them, and may legitimise them.

The upshot is a revised definition of personal relationship, a narrowed definition of “relevant” staff member and a description of abuse of power:

• In addition to any other requirements of this condition, in respect of intimate personal relationships, the provider must ensure that the single comprehensive source of information referred to in paragraph E6.2 provides for one or more steps which could (individually or in combination) make a significant and credible difference in protecting students from any actual or potential conflict of interest and/or abuse of power.
• a. a ban on intimate personal relationships is deemed to be a step which could make a significant and credible difference in protecting students; and
• b. a statement made by the provider to the effect that it disapproves of and/or discourages intimate personal relationships between staff and students may contribute to compliance but will not individually be treated as a step which could make a significant and credible difference in protecting students.
• “abuse of power” means a situation where a relevant staff member exploits a position of power in relation to a student so as to apply pressure in a way which: may result in the student doing something, or refraining from doing something, that they may not have otherwise done; and ii. that action or inaction could reasonably result in something that falls within the scope of an intimate personal relationship.
• “relevant staff member” means a member of staff who has direct academic responsibilities, or other direct professional responsibilities, in relation to that student.
• ‘excluded relationships’ means any ongoing intimate personal relationship that:
• i. existed before the date this condition comes into force and that remains in existence; or
• ii. existed before the date that the staff member became a relevant staff member
• in relation to that student.

If anything, the problem there is that indirect abuses of power can exist between students and staff where there aren’t direct academic or professional responsibilities. Notwithstanding the usual whataboutery over pre-existing relationships (which OfS has covered off) and PGRs, should students be able to be free from being hit on by staff on campus? Yes. Are students likely to be believe that staff protect each other when considering reporting when something goes wrong? Yes.

So, there you have it. There’s more in the docs themselves and Jim has some reflections on what’s not in there elsewhere on the site.

For us, the crucial bit with the extra time is to work properly with students on implementation. The tick box “assurance” approach – here’s what we currently do, here’s a couple of tweaks to comply – just won’t do. Going the hard yards on listening, piloting, assessing where efforts need to be targeted and ensuring (really ensuring) that all staff and students are doing the right things is what’s needed now.

These new requirements have been no small feat in coming to pass. And, in all the severe formality of hard regulation, it is pretty important to remember that this has come about due to the decades-long efforts of tireless student and staff campaigners – ever-changing and adapting to changing student needs – as well as victims and survivors themselves.