It’s a significant moment in the history of the new regulator. Thus far its work on “the student interest” has at best tended towards the technical (with relatively tenuous links back to things that students care about) and at worst has looked like it’s defining the student interest as whatever ministers say it is that week. But this is different. It’s a pretty comprehensive and quite far reaching bit of work that directly addresses an issue that students and their representative organisations have been campaigning on for years.
It’s also a bit of a U-turn. As we’ve highlighted before on the site, OfS has thus far tended to argue that the need to “protect institutional autonomy” and the lack of a clear remit over safeguarding and welfare has tended to mean a focus on what it calls “sector level” regulation – things like funded projects, press coverage and “shining a spotlight” on key issues through interventions “where we can add value”. But after acres of press coverage and pressure on CEO Nicola Dandridge to clarify commitments to take action on failure, this is very much about “provider” level regulation – making clear what all universities and colleges on the register should be doing in this area.
Technically the work is framed as a consultation on an approach to the regulation of individual providers in relation to harassment and sexual misconduct, and OfS is inviting feedback from students, providers and representative bodies to help shape and develop it. Some will read some of the detail and regard the proposals as a major overreach, and others will wonder whether the way in which OfS has pulled this off would really work in practice legally. But other than beefing up bits of the detail, it looks like this is happening. After all, who’s going to come out and say out loud that universities shouldn’t be hitting this standard?
A real problem
The first thing to do is to understand some of the context. As the document notes, students have been campaigning in this area for years – what the report calls NUS’ “seminal” research (“Hidden Marks”) kicked it off in 2010, but it took five years until then Secretary of State Sajid Javid asked UUK to convene a taskforce on “Violence Against Women, Harassment and Hate Crime” that culminated in its “Changing the Culture” series of reports.
2016’s report contained recommendations for action, legal advice and a practical framework for providers to use in shaping their systems, policies and procedures. But it’s now 2020, and there are still what OfS calls “widespread” reports of ongoing cases of harassment and sexual misconduct which are not being adequately addressed by providers – and in particular, “a lack of consistent and effective systems, policies and procedures in place to respond to reports of such incidents”.
This isn’t just press coverage of individual cases. UUK’s Changing the Culture follow up reports published in 2018 and in 2019 said that progress in adopting the recommended approaches was slow and not widespread or consistent across the sector. An independent evaluation conducted by AdvanceHE of OfS’s 119 Safeguarding catalyst projects said there is still a “significant level of variation” in the response by providers, including by their leadership and governance teams. And last year’s EHRC inquiry into racial harassment in higher education highlighted significant issues in relation to students experiencing racial harassment and how complaints were supported and dealt with.
More broadly, much of the project work in recent years has been about awareness and reporting, and in the slipstream of wider #metoo work there’s no doubt that more complaints have been coming in – with more complexity than the often antiquated procedures and practices designed for a different age have been able to cope with. Add to that the widely reported Warwick whatsapp case, and the clear signal that the old “Zellick” approach of palming cases off on the police wouldn’t wash, and it’s clear that there’s a widespread problem. As OfS diplomatically puts it:
“We have not seen evidence that this is because of principled differences between providers, or that it reflects diverse preferences from students on how these issues are managed: this suggests it is likely to be either a lack of clarity over expectation, or a lack of prioritisation.
Defining the scope
So what’s being proposed? First, OfS sets out some helpful definitions of both harassment and sexual misconduct that are in many cases helpfully broader than some of the definitions we’ve seen. This behaviour “type” will probably be uncontroversial – it’s the rest of the material on scope that gets interesting.
Several high-profile cases seem to highlight complaints falling between between the gaps because they’re about off-campus activity, students’ “private” lives or things that go on in student organisations as being out of scope – but it looks like all that’s all over. For example, the definitions would include harassment or sexual misconduct “through any medium, including, for example, online”. The providers we know that argue that Facebook bullying is “out of scope” will have to get their head into how students communicate these days.
The focus of the proposed approach is on how all students registered at a provider, “however and wherever they may be studying”, are protected – following the principles for sub-contractual relationships set out in the regulatory framework. That means franchise students, and those on years abroad, and on placement, and doing distance learning – the message being that the provider who awards is still responsible. “We would expect a provider to investigate (for example, as a disciplinary matter) complaints made in relation to any of these students” might be easier said than done.
It also covers harassment from other students, staff and visitors of a provider (“including, but not be limited to, academic and non-academic staff, governors, temporary or contracted staff and visiting lecturers, whether paid or unpaid”). And OfS would expect that providers would “take a similar approach to protecting staff and visitors” too.
There’s then a “statement of expectations” for the processes, policies and systems which OfS expects providers to have in place to prevent and respond to harassment and sexual misconduct, drawing on reports and approaches taken by other regulatory and statutory bodies. In theory these are principles are not “one size fits all”, and OfS considers that the proposed principles “could be delivered effectively in different ways by providers of different sizes, structure and missions”. The “long tail” of small providers on the register might well disagree, but it’s hard to argue that a student that happens to study English in a large Russell Group university should be any more protected than someone studying Business at an “SME” provider – OfS is rightly arguing universality here rather than your chances of being assaulted being left to the market.
The statement itself is in seven sections. The first covers communication, setting out that the expectations providers have of students, staff and visitors in relation to their conduct should be clear. This is partly about the old “visible commitment from senior leaders” thing, but it’s also about the governing body (“clear governance accountability lines”), working with SUs to deliver a “clear and consistent message” to students, and ensuring that expectations are “made clear to new students and staff as part of induction activities”. Giving a baffled international student a link to a PDF of your ordinance on student conduct is probably not going to cut it in this new world.
Second, governing bodies should ensure that the provider’s approach to harassment and sexual misconduct is “adequate and effective”. This is about risks relating to these issues being identified and effectively mitigated through the Governance – so committees and working groups set up to tackle these issues “should form part of the provider’s governance structure to allow effective oversight”, the governing body “routinely being given information on the provider’s approach”, “periodic reporting on the types of cases and incidents, trends and outcomes of cases”, and “steps taken to ensure that those with a governance role have a clear understanding of the issues… and their obligations under the Public Sector Equality Duty… through training and briefing of relevant staff or members of the provider’s governing body and committees”. Those that have have been discussing this stuff almost exclusively through informal taskforces or via their academic governance will need to change their ways.
Helpfully, higher education providers should also “engage with students to develop systems, policies and processes to address harassment and sexual misconduct”. This isn’t just about the old “student on a committee” – it means “proactive and meaningful engagement” with students and student representatives in the “development, implementation and evaluation of systems, policies and processes”, “engagement with a diverse range of students”, “learning from the experience of students who have been involved in investigations”, and even “engagement conducted in a sensitive manner to support student wellbeing”. OfS has been listening carefully to student campaigners here and SUs should find the suggested fleshing out of “meaningful” engagement very helpful.
As well as that, providers should implement “adequate and effective” staff and student training to raise awareness of, and prevent, harassment and sexual misconduct. For example there should be a clear “training strategy” which supports staff to respond effectively to different types of harassment and sexual misconduct incidents and an assessment of the training needs of all staff. Many academics will recoil at what they might view as an additional expectation on them, but if a student does disclose to a personal tutor surely they should know some basics on how to respond?
Training should also be made available for all staff and students to “raise awareness” of harassment and sexual misconduct – covering areas such as bystander initiatives, consent and receiving and handling disclosures.
Legal eagles will be wondering how on earth these first four expectations link back to formal conditions of registration and how OfS might justify action if the expectations weren’t met – and here OfS admits that there’s no direct link to the regulatory framework or the quality code in these. It will however “evaluate the impact of the publication of the statement of expectations on the practice of higher education providers” and then consider whether “further direct regulatory intervention” (or, presumably, powers) may be needed.
There are conditions
It’s the three bits on complaints handling which represent interpretations (or what some will view as extensions) of regulation where things get tougher.
Principle 6 says that higher education providers “should have adequate and effective policies and processes in place for all students to report and disclose incidents of harassment and sexual misconduct”, including easy to understand information for all students and staff on how they can report, disclose or seek support and advice; provision of support for students not being dependent on a formal report or complaint being made; policies and processes for reporting communicated to all students in an accessible way, good signposting and an “understanding and removal of any barriers to reporting” that may exist for particular groups of students. Again, this is excellent news for the student campaigners arguing that parts of a university community or student body will find it much harder to report than others, and great news for those who’ve been arguing that the formality of complaint making is a problem.
Principle 7 says that providers should have a “fair, clear and accessible approach” to taking action in response to reports and disclosures, with a “visible and easy to understand” policy, how the provider’s process addresses issues that may also constitute a criminal offence (noting that it expects providers to investigate complaints made in relation to any of its registered students), and “visible and easy to understand information” about the provider’s investigatory process, decision-making process and associated timescales.
It also calls for an investigatory process “that is demonstrably fair, independent, and free from any reasonable perception of bias”, that disciplinary hearings that consider student complaints and appeals are “conducted by a panel that is free from any reasonable perception of bias, is diverse and includes student representatives where appropriate”, and that panel members should be “appropriately trained in handling complaints of this nature” and be “independent from the investigatory process and specific case being considered”. We’re surprised not to see an explicit requirement for training for investigators too, but that may well get clarified in the consultation.
Crucially, this one requires an approach “which ensures that staff respond appropriately and consistently to a disclosure about harassment and sexual misconduct”, and that there is “a clear explanation of how confidential information will be used and the protections in place for individuals, within investigatory and disciplinary processes”. We can think of plenty of institutions where there are wild differences in disclosure handling from department to department and pretty poor information sharing that might mean a repeat offender is going unnoticed. This expectation should start to force the argument.
Finally, higher education providers should ensure that students involved in an investigatory process have access to appropriate and effective support, including “equitable access to appropriate support” prior to, during and after any investigation; an appropriate protocol for communication with reporting and responding parties, and that reporting and responding parties are provided with an outcome of the investigatory process “where the provider is able to”. There’s a challenge here – in many universities student-student harassment complaint outcomes are shared but staff-student harassment complaint outcomes are kept confidential – but it’s one that obviously needs a rethink with pragmatic trade union involvement.
The difference with principles 5, 6 and 7 is that there’s a direct link to the regulatory framework – so potential penalties and fines for non-compliance. It’s a bit “square peg, round hole”, and some will wonder whether being silent on this approach will let OfS inappropriately overreach – but it’s clever.
What OfS has done is use regulatory condition B2 (Quality) and C1 (Guidance on consumer protection law) to make these bits mandatory. Condition B2 states that “the provider must provide all students, from admission through to completion, with the support that they need to succeed in and benefit from higher education” and the the regulatory framework identifies that the behaviours that may indicate compliance with this condition include “the provider has fair and transparent procedures for handling complaints and appeals which are accessible to all students”. Given it understands “complaints” for these purposes to refer to complaints made by students against other students, staff and visitors, it’s found a link.
Condition C1 states that “The provider must demonstrate that in developing and implementing its policies, procedures and terms and conditions it has given due regard to relevant guidance about how to comply with consumer protection law” and “relevant guidance” refers to the Competition and Markets Authority (CMA) guidance that can be found on the government website. Section 1.18 of the CMA guidance sets out the expectations for student complaints, including setting clear timescales, not creating unreasonable barriers for pursuing complaints, clarifying routes for escalation and ensuring staff are appropriately trained – so 5, 6 and 7 flesh out that guidance in relation to harassment.
This does not mean that failing to deliver one of the statements in points 5, 6 and 7 of the proposed statement of expectations would automatically constitute a breach – OfS would consider the context, the reasons for the provider’s approach, and whether it had taken alternative action.
This isn’t everything that everyone wanted. Some will see an encroachment on institutional autonomy in principle – but who wants the freedom to fail students? Others will bemoan the fact that principles 1-4 won’t be formally enforced – at least not yet. Many will wish there was a way to consistently collect stats and will wonder why OfS is not proposing to gather them. Some will argue that the sector was doing this anyway, and others will worry about having the time to do deep student engagement and put in place new policies and practice in time for a “go live” date of this summer.
Some would have wanted a proper new condition of registration and others would have wanted policies to be published and put on DiscoverUni. OfS hasn’t ruled any of that out, but figures this approach is right for now. The evidence gathering for breaches of principle 5, 6 and 7 looks pretty wobbly too – depending on OIA referral, emailed “notifications” and “reportable events” might not do the highlighting that’s needed – but it’s a start, especially if SU advice centres can be persuaded that a confidential notification to OfS of systemic failures will improve things for students – something that it proposes to encourage.
Some would have wanted a requirement on anyone employed at a university that becomes aware of harassment to have to report it. And quasi or actually separate organisations – halls managers, colleges in collegiates, sports departments and crucially SUs that have been operating separate procedures with different definitions, panels and processes – will need to be much better knitted in and the data sharing issues solved, with clarity and consistency of protection for students the prize.
We’re still not really clear on the duty of care that a university has over a student, either. It’s all very well OfS saying “providers are responsible for protecting all its registered students” but extend that out from harassment complaints and things start to get pretty muddy.
But taken overall, this is very good news for students. The careful coverage of “harder to reach” student groups, both within a large traditional university and in the long tail will be a challenge, but one worth taking on. The implications on handling placement providers or doing due diligence on year abroad partners are fascinating, but desperately needed. The way the work will force conversations about autonomy and consistency within universities can only be a good thing. It probably shouldn’t have taken ten years to get here, but this would never have happened under HEFCE. Students will be better protected as a result of regulation.