In September 2022, Universities UK (UUK) finally published its practical guide to addressing staff-student sexual misconduct, accompanying the strategic guide that it published in February.
At 127 pages long, it is perhaps not surprising that such a mammoth piece of work has been delayed repeatedly. And yet, despite its length, my overall assessment is that the guide itself constitutes a missed opportunity and fails to identify ways forward on several key challenges in this area.
By contrast, the accompanying “legal briefing” from Eversheds Sutherland contains some important clarifications that endorse the approach that we at The 1752 Group have taken in our 2020 guidance.
As such we hope that this briefing will push forward practice in this area, despite leaving some questions still to be answered.
Wicked problems
As a co-director of The 1752 Group, a research and campaign organisation tackling staff sexual misconduct, I was invited to join an advisory group in this area by UUK in 2018.
At the first meeting, we presented evidence on the issue and our vision for how the group should go about its work as there were several “wicked problems” that needed to be addressed in relation to this issue:
- “Passing the perpetrator’ between institutions
- Students’ fear of reporting staff who have significant power over their careers
- The lack of rights for complainants in the reporting process
- A lack of clarity around professional boundaries between staff and students
We proposed a funding model that would allow the group to dedicate time to exploring shared solutions to these problems. However, our suggestion was not taken up – and the guidance was instead written by committee, without further R&D work to address these “wicked problems”.
Following three and a half years’ work, in December 2021, amidst academic staff (including ourselves) taking industrial action, we formally withdrew from further engagement in the development of the guidance due to our lack of faith in UUK on this issue and more generally.
This background perhaps helps to explain why, despite having contributed substantially to this work and put in weeks of voluntary labour into developing this guidance over the past four years, I am not satisfied with the result.
Fundamentals
While an extensive critique of the document is beyond the scope of this comment piece, I will highlight two fundamental issues.
First, recommendations are directed to individual institutions, rather than the sector as a whole. This is a problem because, while individual institutions certainly do have substantial amounts of work to do in this area, the “wicked problems” noted above cannot be solved at an institutional level – they require shared practice to be implemented at a sector level. Such a sector-wide approach is not addressed in this guidance.
Second, throughout the guidance, the assumption is made that “best practice” already exists and institutions simply need to share and implement it. For example, the guidance recommends that institutions “ensure processes for managing complaints, risk assessments, investigations and disciplinaries are fit for purpose, and reflect sector best practice”. The problem is that “sector best practice” is not very good.
To give just one example, as we have outlined with discrimination lawyer Georgina Calvert-Lee, standard practice from the Office for the Independent Adjudicator for Higher Education (OIAHE) gives reporting parties fewer rights than reported parties, thus risking indirect discrimination under the Equality Act. This means that updating processes to reflect “sector best practice” will still result in a discriminatory process.
To be clear, these shortcomings are not the fault of any individual authors of the guidance, but rather on UUK’s process for devising it. This process reveals problems with the current regime of self-regulation of higher education providers in this area.
UUK’s approach – of inviting representatives from sector bodies to volunteer to write this guidance as part of a committee – failed to recognise that there are some fundamental stumbling blocks in this work that need joined-up, ambitious solutions that will not just magically appear, but that require resources to devise and disseminate.
Looking elsewhere
A contrast can be made with the approach being taken by the Higher Education Agency in Ireland, where I have also been sitting on the advisory group – a national survey of staff and student sexual violence and harassment was carried out last year, to be repeated annually, is accompanied by a national implementation plan.
It outlines sector-wide strategies and actions to be taken, on top of action plans being required from each institution, all carried out with ringfenced funding.
Of course, there are important differences in the regulatory framework between the UK and Ireland. But when Universities UK – a lobby group representing a billion-pound industry – cannot resource sector-wide work on such a serious issue, then there is a risk that this work is seen as a PR exercise rather than a serious attempt to address staff sexual misconduct.
Silver linings
Despite these failings in the guidance as a whole, there is a silver lining – a 67-page long one, in the form of the Eversheds Sutherland legal briefing that accompanies it. If you are only going to read one thing, read this. It pushes forward good practice in several ways.
First, it mostly supports the principles in our 2020 guidance authored with Georgina Calvert-Lee to ensure equal rights for reporting and reported parties in staff disciplinary cases. We argued that the staff disciplinary process needs to be adapted to give more rights to the reported party in staff-student cases, and the Eversheds briefing agrees.
Second, it is stronger on data sharing than the UUK guidance from July 2022. For example, on sharing sanctions imposed after a disciplinary process, unlike the July 2022 UUK guidance, it suggests that higher education institutions “may consider that an open and transparent process is pivotal to their public task, and therefore [sharing sanctions with the reporting party] falls within this lawful basis”. It goes on to outline a case study where information on sanctions may be justified on the grounds of “substantial public interest” as part of the provider’s “public task”. This material gives those of us fighting for more transparency from institutions a respected legal opinion on which to base our arguments.
Third, there is a welcome appearance from health and safety law. A dramatic case study ends with the Health and Safety Executive turning up at an HEI to carry out an urgent review at 9am the day after being alerted by the SU to potential breaches of health and safety law. Too often, sexual harassment fails to be seen as a health and safety issue so this heads-up to health and safety leads within higher education providers may prove to be the most helpful intervention from the briefing.
Mandatory reporting?
Finally, the briefing suggests that higher education providers may need to carry out a formal investigation even in the absence of a formal complaint if they have become aware of “serious sexual misconduct”. This echoes the recommendations from Gemma White KC’s recent report into Trinity Hall Cambridge (which I wrote about for Wonkhe), and our briefing note on “proactive investigations” from 2020, co-authored with Georgina Calvert-Lee.
Both White and ourselves argued that informal actions can and should be taken in the absence of a formal report. We go further than White to suggest that the higher education providers may themselves need to instigate an investigation in such a situation.
The Eversheds briefing supports this position. In one of the case studies, they describe an instance where students could have grounds for a legal case against an institution where it fails to take forward an investigation even in the absence of a formal report. This case studies raises as many questions as it answers, not least around the mechanics of how an investigation can be carried out, and how evidence should be tested in the absence of a named report.
The problematic spectre of mandatory reporting – standard practice in the US where informal disclosures to certain members of staff are treated as a formal report – also raises its head through these examples. This briefing will therefore be far from the final word in addressing this issue.
Taken together, these pieces of guidance do represent steps forward. However, they are likely to be very challenging to implement for HEIs. As well as the issues outlined above, the “practical guide” is very long, detailed, and not always internally consistent, presenting problems as often as it presents solutions.
And the Eversheds briefing is so far ahead of current practice in UK HE that it will require a major step forward, even for those institutions who have already been working on this issue.
Nevertheless, in England, the ground is being prepared for regulation in this area, and so I remain hopeful that these interventions will push us further towards more ambitious, survivor-informed, and far-reaching changes in higher education.
Excellent work, this will help our SU (and students) immensely!