The OfS Proposals on Regulating Harassment and Sexual Misconduct February 2024

The second in a three part series, Karen Stephenson, University Secretary at Birmingham City University, analyses the latest harassment and misconduct regulation proposals from OfS.

Published in February 2023, the proposals are framed as a consultation and presented in 92 pages which includes 6 Appendices. These are delivered in what is intended to be a formal manner and is perhaps necessarily legalistic. The proposals are supported by a discursive rationale. The spirit and intention of the document are encapsulated in the following “proposing to place substantive enforceable obligations on universities and colleges” p7 (my emphasis). There is perhaps a hint of frustration in the document. Hence “we had hoped to see concerns about harassment and sexual misconduct addressed through effective self-regulation” p6 (my emphasis). The OfS goes on to specify its previous facilitating action to date:

  • Sector wide effective practice guidance.
  • £4.7m spent on information, guidance and resources via the Catalyst Funding Programme which was channelled through 119 projects designed to tackle sexual misconduct online, harassment, hate crime and religion based hate crime.
  • Established clear, consistent voluntary standards in a statement of expectations.

The OfS view is that “some universities and colleges have either been slow to take up the statement of expectations or have not sufficiently prioritised this issue. There has also been a lack of focus on forms of harassment that are not sexual harassment. Our evaluation ultimately concluded that while some progress has been made, it is not sufficient.”(p6). Herein lies the premise for substantive enforceable obligations. Hence “this is why a different approach is needed” p7.

The OfS Proposals

The key proposal is to introduce an ongoing condition of registration (harassment and sexual misconduct) which places a regulatory requirement on all registered providers. This overarching requirement is referred to as Proposal A and is intended to provide the framework for the specificity of new regulations which are detailed in Proposals B-F which are outlined below.

“Proposal B: Impose a requirement for a provider to develop and publish a single document explaining its approach to tackling harassment and sexual misconduct. We propose that this document should include information about:

i. Multiple steps a provider is taking that could make a significant and credible difference in protecting students from harassment and sexual misconduct.

ii. A provider’s arrangements for handling disclosure and reporting of harassment and sexual misconduct incidents, including how information will be handled, investigations undertaken, and any decisions made in respect of how incidents are communicated to relevant individuals.

iii. A provider’s arrangements for supporting students who have experienced incidents of harassment or sexual misconduct.

iv. A provider’s arrangements for training students and staff in relation to harassment and sexual misconduct.” Page 10 full discussion p.19-26.

“Proposal C: Impose a requirement for a provider to have the capacity and resources necessary to facilitate compliance with this condition.” Page 10 full discussion p.27-28.

“Proposal D: Impose a requirement for a provider to comply with condition E6 in a manner consistent with the freedom of speech principles set out in the condition.” Page 10 full discussion p.29-32.

“Proposal E: Prohibit a provider from restricting the disclosure of information about an allegation of harassment or sexual misconduct that involves or affects one or more students. This section also proposes that a provider should not rely on or enforce pre-existing prohibitions, and should take all reasonable steps to prevent any other person from restricting the disclosure of information or relying on pre-existing prohibitions.” Page 10 full discussion p.33-35.

“Proposal F: Impose requirements on a provider relating to personal relationships between students and relevant staff. Relevant staff are defined as a member of staff who has direct or indirect academic responsibilities, or other direct professional responsibilities, in relation to a student. Two possible options are set out in this section:

  • Option A: Require a provider to take all reasonable steps to: require any relevant member of staff to disclose any personal relationship with a student; and to dismiss any relevant member of staff where they refuse to disclose a personal relationship with a student. This is our preferred option.
  • Option B: Require a provider to take all reasonable steps to: prohibit any relevant member of staff from having a personal relationship with one or more students; and to take appropriate steps which would normally be dismissal of a relevant member of staff, where they refuse to end a personal relationship.” Page 10 full discussion p.36-44.

“Proposal G: Subject to the responses to this consultation, any new condition of registration would come into force on a date not less than three months from the date the OfS publishes its final decisions.” Page 11 full discussion p.48-49.

These proposals represent a significant intervention and will, if implemented, impose a range of policies which the sector have clearly not previously embraced. The formal feedback from the sector was due at the end of 2023 but at time of writing this was unavailable. The following and final blog in this set of three addressing these proposals will explore responses from the sector.