In a Women and Equalities Select Committee hearing, David Smy, Deputy Director of Enabling Regulation at the Office for Students (OfS), confirmed that he expects that OfS will introduce a condition of registration on harassment and misconduct essentially in the form of the one put forward in last spring’s consultation.

He noted that final decisions are yet to be made, but the consultation response will arrive in the second half of May, and it sounds like the sector should not be expecting large changes from what the regulator proposed.

Condition

A quick recap – OfS is proposing to impose a substantial new condition of registration on providers in relation to harassment and sexual misconduct that would do six key things:

1. Provide clear definitions of harassment and sexual misconduct
2. Require each provider to create and publish a single “document” explaining: the steps it will take to protect students from harassment and sexual misconduct; its arrangements for handling incidents of harassment or sexual misconduct; the support it will provide to those involved in incidents (both complaining and responding parties); the training that it will provide 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.
3. Require each registered university and college to have the capacity and resources to deliver everything required by the proposed condition.
4. Ensure freedom of speech and academic freedom are protected by requiring universities and colleges to continue to meet their legal and regulatory obligations regarding freedom of speech and harassment.
5. Prohibit non-disclosure agreements that forbid students from talking about incidents of harassment or sexual misconduct that they may have experienced.
6. Place regulatory requirements on universities and colleges in relation to personal relationships between students and relevant staff (for example, those involved in teaching students or marking their work).

As with its other conditions of registration, OfS would have the power to launch investigations, levy fines (up to £500k or 2 percent of qualifying student income), and impose specific conditions of registration.

It is important to note here that the OfS would only provide individual complaint resolution in cases of NDAs, which would be covered by their powers under the Higher Education (Freedom of Speech) Act 2023.

We also got some insight into what to expect from the consultation response next month.

Prevalence

Smy confirmed that the pilot prevalence survey – which OfS ran last autumn, will be published alongside the consultation response in May.

Wonkhe readers will know that the prevalence survey findings are important. The OfS circumvented providers’ data – which can be impacted by a whole host of things, like how easily accessible reporting systems are (and the panel did allude to multiple reports suggesting there are failings in reporting structures in conservatories and other institutions linked to the creative industries) – and directly asked students if they have seen or experienced sexual misconduct (many who will have experienced this will not have reported).

OfS can also triangulate the prevalence findings with institutional reporting data. If the two data sets are widely different, this may indicate issues such as institutional trust among students and hesitancy in reporting.

While we have to wait until May for the official data, we learnt that the prevalence insight indicates problems in areas with a “reasonable degree of detail” and brings nuance to the issues students face and the types of environments they face them in.

That said, only 13 institutions participated in this pilot – and no Russell Group institutions. A final decision on whether to build on the pilot to do wider prevalence work in the future had not yet been made. But we very much got the impression that the regulator would be keen to see this.

Student support

The consultation response garnered a 17 per cent student response rate, which Smy described as “unusually high” and “higher than on any other condition,” – though he did also say that these were mostly from students’ unions.

For some time I have pointed out that consultations at the institutional level on staff-student relationships (one of the topics in the consultation) seem to ignore student opinion. Though we had no indication of the outcome here. The high level of student response does show that we have a motivated student base in which to carry any work arising from the response forward – providers: take note, utilise, collaborate!

We learnt that the proposals for a condition for registration had support from students who saw it as empowering to have clear required standards for their safety. Providers agreed it was an important issue but had concerns around it being a regulatory requirement, with Smy noting the term “mission creep” had been used. However, if OfS were to introduce a condition, he envisions the sector would comply (well, they would have to!).

We also learnt that most student respondents were keen on bystander intervention training. Still, some students – and a fair few providers – had concerns about the impact such training would have on survivors of sexual misconduct if mandatory while also having concerns about attendance being voluntary.

Smy suggested that if bystander training were voluntary but poorly attended at a specific institution, it could give said institution a chance to consider why this may be.

There was no confirmation as to whether providing such training would be a condition of registration when asked.

Institutions may not be as excited about this news as we are at Wonkhe HQ – as it will understandably involve a lot of regulatory burden. But – as providers are said to have acknowledged in the consultation response – this issue is of paramount importance and something students (and staff) have been campaigning on for years.

Given that it has been almost 15 years since Hidden Marks – highlighting the prevalence and impact of sexual misconduct on campus, and a further four years since OfS published an informal set of expectations on harassment – after which it was said the sector had not made adequate progress – the news that such tireless work may actualise into protections for students is very welcome indeed.