Higher education after #MeToo – there’s still work to be done on case handling

Responses to reports of gender-based violence and harassment from UK higher education institutions have a long way to go before they are fit for purpose.

Higher Education After #MeToo follows on from The 1752 Group’s previous research, which concerns staff-student sexual misconduct, and explores staff-staff and student-student gender-based violence and harassment, drawing on interview data both from reporting parties and staff handling reports.

The research found that while there is a substantial amount of work that can be done at the level of individual institutions to improve reporting and case handling – not least to address the enormous disparity between institutions in their ability to handle reports appropriately – there are urgent sector-level or structural issues that need to be addressed to make reporting processes functional and fair.

While some universities attempt to tackle these issues at the institutional level, such complex legal and procedural questions require a standardised approach. At the launch event for the report, the panel explored some of these repeated processual issues.

Collective grievances

At The 1752 Group, we have been raising awareness of the problems of using individualised processes to address what is a collective issue for some years.

Existing grievance and disciplinary processes tend to assume that complaints are solely made by an individual reporting party against an individual staff member or student. However, previous research shows that perpetrators of gender-based violence and harassment are likely to target multiple people. This means that current, individualised processes are inadequate and result in poor outcomes for complainants.

For example, at one university, the complainant was told that a previous complaint would need to be investigated and completed before her complaint against the same staff member was taken up.

This is also a poor way of assessing evidence, as a pattern of behaviour across multiple complaints cannot be established.

In the panel discussion at the launch event, Julie Dennis from ACAS (the Advisory, Conciliation and Arbitration Service) reminded us that employers should have a collective grievance procedure – a bespoke process to handle grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative. In our experience, it is rare for organisations to have collective grievance processes. In the research, there was evidence of just one such collective grievance.

The idea of collective grievances also taps into the “safety in numbers” spirit of MeToo – lawyer Deeba Syed noted in the panel discussion. This makes a huge difference because people are much more likely to come forward if others are doing so, rather than every complainant starting from zero.

Jo Nuckley from the Office for the Independent Adjudicator (OIA) noted that while the OIA guidance on group complaints could be used for gender-based violence and harassment reporting, they have never received any group complaints in this area.

This could be because it can be extremely difficult for reporting parties to get through internal institutional processes to access the OIA services.

Higher Education After #MeToo sheds further light on this issue, revealing that some universities don’t even open up a complaint when receiving a report of gender-based violence and harassment, but go directly to the disciplinary process. This means that the reporting party has no way at all of accessing the OIA’s services. This is an egregious failure of existing accountability measures for reporting parties.

Complainant confidentiality

Across all our work on staff-student sexual misconduct, one of the biggest blocks to reporting has been the requirement that victim-survivors are named in their report against the accused staff member.

This means that victimisation – the technical term for retaliation against someone for making a complaint – is common, and HR departments are not necessarily forthcoming with precautionary measures to protect reporting parties. When complainants do request confidentiality, they tend to be met with blanket refusal.

However, there were two examples in the research where interviewees were granted confidentiality, and their identities were not disclosed to the responding staff member. Such an approach must be distinguished from fully anonymous reports where the reporting party’s identity is entirely unknown. Confidentiality means that witnesses’ identities are known to the investigator but not to the responding staff member. The evidence must still be put to the responding party and tested against their account.

This approach is in line with existing guidance. While the OIA states: “it is not normally appropriate to keep the identity of witnesses secret during disciplinary proceedings,” Jo Nuckley noted in the panel discussion that “normally” in its guidance is doing some heavy lifting. This statement does give universities discretion to do more in this area.

Similarly, ACAS guidance notes that “in exceptional circumstances where a witness has a genuine fear of reprisals should an investigator agree that a witness statement is anonymised,” and witness interviews may be redacted to prevent identification.

In practice, however, investigators are failing to utilise this option. This could be due to concerns that findings will be overturned at appeal stage, lack of awareness of ways to test confidential evidence, or perhaps complaints being addressed individually rather than collectively.

Equalities barrister Georgina Calvert-Lee stressed caution with using confidential evidence as it increases the likelihood of findings being challenged but also noted that investigators can test evidence in a number of ways – including using it to corroborate evidence from named accounts.

Either way, to address sexual harassment and misconduct – particularly across a power imbalance such as between staff and students – more sophisticated use of confidential witness statements is urgently needed.

Parity in the process

A further issue with reporting processes is that reporting parties – whether students or staff – are shut out of the disciplinary process, even while carrying all the risks that stem from being obliged to make a named report. As one undergraduate student, “Victoria”, who shared her experiences of reporting sexual violence from another student in the research, explained:

For me, [a fair system] would mean knowing what was being said about me so that I could put forward a justification – because he was allowed to justify himself. But when I was so shut out of every process, it felt like his side had already been taken, no matter what they thought, because here he was, being given access to everything. Here he was, being allowed to submit questions, to interrogate me on what had happened. […] I wasn’t allowed to submit any questions back.

Both the reporting parties and the staff who handled reports interviewed for the research felt that reporting parties have unequal rights compared to responding parties.

Georgina Calvert-Lee has previously outlined our argument for allowing reporting parties’ rights within disciplinary processes in staff-student cases. In the panel discussion, Jo Nuckley agreed that reporting parties should have opportunities to see the evidence put to the responding party and to respond to it. This, she suggested, is more about ensuring a good quality investigation process than amending the disciplinary process. This position was also supported in recent legal guidance on handling staff-student sexual misconduct cases.

This leaves the question of how to ensure these opportunities are made available if these matters of parity in the process need to be outlined in guidance from ACAS or the OIA. Existing options for reporting parties to hold their institutions accountable are proving inadequate.

Who is holding institutions to account?

The Office for Students is proposing a new regulatory requirement to address sexual violence and harassment in England and Wales.

If adopted, this will impose obligations at institutional level but will not give individuals or groups of students any more rights to challenge institutions’ poor practices in this area. This is a problem because, currently, there are very limited options for reporting parties – whether staff or students – to hold their institutions to account.

The campaign #ForThe100 for a duty of care towards students from universities would address this, but even their measures would require students to have the financial means to take legal action.

We have suggested that the Health and Safety Executive – which currently passes the buck for addressing workplace sexual harassment – should also play a role in monitoring institutions’ approaches to handling gender-based violence and harassment.

Alongside this, we also urgently need effective mechanisms for individual staff and students – or groups of reporting parties – to hold their institutions to account. The OIA itself notes that it receives very few complaints in this area. As it stands, therefore, there are very few options for holding institutions to account for these failures. Until this changes, research and media reporting will continue to uncover the same stories we have found in Higher Education After #MeToo – of students and staff losing careers, lives, and opportunities after being targeted for abuse and harassment.

Higher Education After #MeToo is a new research report led by The 1752 Group’s Anna Bull, exploring higher education reporting and disciplinary processes for gender-based violence and harassment. At the launch event, she discussed findings with expert commentators from the Office for the Independent Adjudicator, ACAS, and others.