The Office for Students (OfS) has published its regulatory requirements – to come into effect from 1 August 2025 – for all higher education institutions (HEIs) in England to address harassment and sexual misconduct.
I’ve addressed the steps that are required of HEIs to address abuses of power between staff and students – not least the importance of the phrase “abuses of power”, rather than “‘conflict of interest”. Here, I want to focus on the implications of the new regulations for complaints and disciplinary processes, as well as building on Jim’s discussion of what’s missing in this regulation.
Fair processes
My recent research project Higher Education After #MeToo looked at how HEIs were handling reports of gender-based violence and harassment (GBVH) from staff and students. We found that, at their best, higher education institutional responses to sexual misconduct are – according to interviewees with experience across both areas – better than the criminal justice system, taking seriously institutions’ duty of care to students with a nuanced and professional approach.
However, examples of such good practice appeared to be rare. We also found many accounts of extremely distressing and ultimately ineffectual processes leading to outcomes such as interviewees losing their job or career and/or becoming suicidal, among other debilitating impacts.
We also found there were significant challenges in implementing the “fair” process that OfS is asking for. Particularly in staff-student sexual misconduct cases (and in staff-staff cases, which are outside the scope of the OfS regulations), we found that untrained staff were investigating and handling sexual misconduct cases. There is a big piece of work to be done in Human Resources departments and/or complaints departments in HEIs to train staff to handle staff-student sexual misconduct complaints – in line with the requirements outlined in the regulations.
We’ve also drawn attention to the ways in which the standard process for investigating sexual misconduct gives more rights to responding parties (the person accused of misconduct) than those reporting. The reporting party ends up being a “witness” to the disciplinary case that the university takes against the responding party. This means the reporting party – the survivor – has no right to call witnesses, see all evidence, appeal the outcome, or even know the actions taken as a result of their complaint.
OfS has given a steer towards addressing this, but it could be stronger. It’s stated that HEIs need to provide information about
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.
If HEIs continue to use a process which disadvantages reporting parties, then we think this is unfair, and could even be open to judicial review. Our guidance on staff-student sexual misconduct complaints sets out how the process could be adapted to address these issues (this is relevant to student-student complaints as well).
OfS also weighs in on providing information at the end of a complaint to ‘persons directly affected by any decisions’ (a helpful phrasing that could include witnesses or others who have informally reported the same person). As I’ve argued, together with legal and practitioner colleagues, failing to share actions taken – including disciplinary actions such as dismissal – at the end of a complaint does not clash with GDPR responsibilities. OfS states that HEIs should explain:
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 [my emphasis]
There is a lot riding on the interpretation of the word “decisions” here. Does it mean “outcome” or “disciplinary actions taken”?
If the former, there is a risk that this is not strong enough; a complainant might be informed about a decision (eg “your complaint has been upheld”) and the reasons taken (“because we have assessed the evidence as follows”) without sharing actions taken as a result of the complaint (“so we have dismissed/expelled the responding party”).
Complainants should not have to go through a lengthy and distressing process without knowing what action has been taken as a result of the complaint, particularly as the reason why many people report in the first place is to make sure that what happened to them doesn’t also happen to others. They need to know that, as a result of their complaint, other students/staff will be safer. HEIs therefore need to interpret “decisions” in the above guidance, as “disciplinary actions and outcomes”.
More generally, the level of detail given in the condition of registration is not going to be sufficient to support staff dealing with complaints/disciplinary processes who are struggling with the lack of clear legal or policy guidance in this area. The dominant model for this work across the UK from recent years is “sharing best practice” in order to disseminate ideas across the sector. This leaves complex processual and legal questions to be resolved by frontline staff.
As a result, HEIs and usually individual staff members have to carry responsibility for unclear procedures in handling cases with extremely high levels of risk.
This issue could be mitigated by OfS providing follow-up guidance to clarify the types of issues that we highlighted in Higher Education After #MeToo, such as what to do when there are informal reports but no formal complaint, and how to address group/multiple complaints, as well as putting resources into developing options for alternative approaches to formal complaints.
What could possibly go wrong?
On this site, Jim Dickinson has already highlighted some of the omissions in the regulatory requirements, including the long timelines for complaints handling, and the lack of discussion of harassment in student societies, between providers, or on fieldwork, among other issues. Building on that discussion, I’ve also highlighted some areas of concern which could mean that the regulation is less effective than it should be.
Monitoring and evaluation
Monitoring and evaluation is light touch, to say the least. OfS states that monitoring and evaluation will occur
through intelligence and evidence-gathering practices, such as the receipt of reportable events and notifications, information that may come from third parties, as well as other data that we may receive from time to time.
If you’re thinking that sounds pretty vague, then you’d be right. OfS has a system of notifications which means you can send information to them, but you will never find out how they have used this information, nor do they publish anything which tells us what they do with it. As I’ve previously written, this is inadequate and means that universities are held to a different standard of accountability than charities.
So, while HEIs will be taking action on this regulation, if they don’t have anything adequate in place by 1 August 2025, there may not be any repercussions from the regulator.
On top of this, if students report to their HEI and are victimised or otherwise negatively impacted by reporting, or if their HEI fails to keep them safe from the staff member/student who has targeted them, this regulatory approach has nothing for them. There are no mechanisms to hold HEIs accountable for such failures.
The existing approach for students is to go to the Office of the Independent Adjudicator for Higher Education (OIAHE) if they are unhappy with how their complaint has been handled, however as I’ve previously demonstrated, the OIAHE is inaccessible to many student complainants as they have to get through their own HEI’s processes first.
Then, if they do access its services, it usually can’t offer what they need – to keep themselves and others safe and to continue their studies/careers. The only other option is legal action, which has prohibitively short time limits and is too expensive for most students to be able to access. So we are still going to see students who have been failed by their universities going public and sharing their experiences on social media and mainstream media. In fact, this is likely to happen even more as there will be more information available about reporting to HEIs but some institutions will not have sufficient systems up and running by next August to handle reports sensitively and effectively.
As a result, accountability mechanisms are still a huge problem. OfS would argue that it is an institutional regulator, not a complaints ombuds organisation and it takes action on the level of the sector and institutions as a whole, not individual cases. Nevertheless, we at The 1752 Group encourage people who are in this situation to send a notification to OfS – even if it might feel like shouting into the void.
To address this issue, I’d like to see public data reporting requirements on HEIs, for example annual reports (such as some HEIs already do) on number of complaints and outcomes of these; data on anonymous reports; and consultation and engagement with students including survivors/reporting parties with public reporting on how HEIs have responded to the concerns raised.
Racial harassment
As Jim has also noted, there is a resounding silence around racial harassment in the published materials.
Other forms of “protected characteristics” under the Equality Act are included in the definition of “harassment”: age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation. (Pregnancy and maternity discrimination, while they are protected characteristics under the Equality Act, are not included in relation to protection from harassment).
However, throughout the regulations there is a lot less discussion of racial harassment than sexual misconduct. This is notable in light of the Equality and Human Rights Commission’s important 2019 research which found that students who report racism and racial harassment are also receiving poor responses from HEIs.
Overall, there’s a danger that the focus on sexual misconduct and harassment throughout means that HEIs forget that this is about harassment on the basis of ALL protected characteristics.
Where is gender?
The wording of the regulatory requirements gives it away: “harassment and sexual misconduct” rather than gender-based violence and harassment. The survey findings demonstrate that the vast majority of perpetrators are men and the vast majority of those victimised are women – and even where men are victimised it’s equally likely to be by other men as by women. And as we know from wider research (such as this large study of students in Australia), non-binary or trans students are much more likely to be targeted for sexual harassment or abuse than their cisgender peers.
This is relevant because a gendered analysis is missing from this framework. Yes, HEIs themselves can introduce the concepts of misogyny, sexism, or transphobia in carrying out training or interventions. But in the current climate where online misogyny is rife, a gender-blind approach risks leaving the causes of much sexual harassment and misconduct unaddressed, while only targeting the behaviours that result from it.
What about domestic abuse?
The response to the consultation noted that various responses asked for domestic abuse to be covered as well. Indeed, my own survey of an English HEI – asking about physical and psychological aspects of “dating violence” – found that 26 per cent of survey respondents had been subjected to “dating violence”, such as being pushed, grabbed or shook, or being scared of someone they were in a relationship with, and 11 per cent of respondents had at least one experience of being pushed, grabbed or shaken by someone they’d been in a relationship with during their time at the university.
OfS has not given particularly clear reasons for why they have decided not to include domestic abuse, but has simply stated that:
Providers will be permitted to provide further examples of activities meeting this definition in their policies and will remain able to extend their policies to cover a wider definition as long as they do not contradict or conflict with the definition in the condition
This is a huge gap; young people are more likely to experience domestic abuse than other age groups. This is a missed opportunity to address this issue.
What about Wales, Scotland and Northern Ireland?
The Office for Students is the regulator for higher education in England only. So, this regulation does not apply to HEIs in Wales, Scotland or Northern Ireland. In Wales, there is a new tertiary education regulator and word on the street is that they do indeed plan to introduce regulatory requirements in this area, but when and what is at present unknown.
The Scottish Government have been putting funding into this area and supporting research and resource development, but I have not heard of any plans to implement regulatory requirements.
Northern Ireland is a much smaller context with very few HEIs, which are under the banner of the Department for the Economy but again I am not aware of any plans to introduce regulation in this area. Students and staff from these nations may wish to contact their relevant government or regulatory body – or simply their MP – and ask about plans in this area.
What about staff who experience sexual misconduct from other staff?
The Office for Students’ condition of registration only applies to students. This means that staff who are targeted for harassment or misconduct by other staff are excluded from these regulatory requirements. At a time when HE staff have been feeling overworked, overlooked, and many of whom are under threat of redundancy, this feels like an extra kick in the teeth.
Despite its name, OfS is the regulator for higher education, not just the regulator for students. So it seems that there might have been scope for them to require this approach to cover staff who are victimised as well.
Staff are, of course, covered by general statutory protections such as the Equality Act, but the level of regulatory oversight that comes with this is minimal and there is scope for sector-specific regulators to do more. If the Financial Conduct Authority can do it, why can’t OfS?
And aren’t universities all broke?
There is a funding crisis in UK higher education, and this regulation could hardly have come at a worse time. At least half of UK HEIs are shedding staff and we’ll be looking at many thousands of academic and professional services staff leaving the sector over the coming months.
In this situation, it is going to be an enormous challenge for universities to implement these regulatory requirements by August next year. Of course, addressing harassment and sexual violence should not be an add-on, but should be fundamental to HEIs’ everyday functioning.
Nevertheless, this has not been the case to date, and requiring this shift right now is going to be a challenge for many institutions. Let’s hope that the current funding crisis doesn’t derail this work.
