The almost-ban on staff student relationships needs clarifying and simplifying

Condition E6 requires that policies provide for one or more steps which could (individually or in combination) make a significant and credible difference in protecting students from any actual or potential conflict of interest and/or abuse of power in relation to intimate personal relationships between “relevant staff members” and students.

The abuse of power definition is fine – that’s explained as a situation where a staff member exploits a position of power in relation to a student so as to apply pressure in a way which may result in the student doing something, or refraining from doing something, that they may not have otherwise done.

And the guidance on detrimental treatment and favourable treatment gives examples – like both negative and positive outcomes on assessment, funding, access to resources or participation and networking opportunities.

But the definition of “relevant staff member” is rather less principles-based:

relevant staff member means a member of staff who has direct academic responsibilities, or other direct professional responsibilities, in relation to that student.

Academic responsibilities includes, but is not limited to, teaching, supervision and assessment. And the reference to “other direct professional responsibilities” is intended to capture staff with a direct professional or pastoral responsibility for a student.

This all matters because the focus is on these “relevant” staff members. Either a provider outright bans intimate personal relationships between them and students, or OfS has a fairly tortuous list of other steps it would imagine a provider has to take to reduce risk that ought to cause any sensible HR director to say “Christ no, just ban”.

It then can, but very much doesn’t have to, take that ban wider.

Who’s covered?

But who is “relevant”? The guidance contains an “illustrative and non-exhaustive” list of the types of staff members that are expected to be captured by the definition above:

• Teaching staff, such as lecturers or graduate teaching assistants.
• Dissertation or project supervisors for taught postgraduate students or research students.
• Personal tutors and pastoral support staff.
• Senior members of staff with responsibility or oversight of wider institutional strategy, processes and delivery, for example, vice-chancellors.
• Security staff.

This appears to mean the above types of staff would be expected to be covered where there is a direct academic or professional responsibility for a given student rather than those staff types in general.

But as I say, that leaves open the question of whether such staff should be covered by a ban more generally.

Let’s set aside for a minute the reality in the polling – that when you ask students, they generally don’t want to be hit on by their lecturers whether they’re their personal tutor or not.

What we’ve come to understand through the high profile cases is that students are especially vulnerable to these sorts of abuses outside of formal “direct academic or professional responsibility” in tight-knit and professional environments.

I’m thinking things like small departments; Oxbridge colleges; schools that train the professions; placements and fieldwork; and the performing arts in general.

OfS is not especially clear on the kind of risk assessment that should be carried out that informs a policy – in fact, the EHRC’s stab at something similar in its guidance on the new legal duty to protect staff from harassment, which kicks in UK-wide later this month, is much clearer.

(The Worker Protection Act takes effect from 26 October 2024, requiring employers to take reasonable steps to prevent sexual harassment of their employees.)

OfS does say that the steps that may be significant and credible will depend on the context for an individual provider because they will need to be informed by the nature and severity of the issues faced by a provider’s students. It also says that the nature of a provider’s students and courses may mean that it needs to maintain more than one policy relating to harassment and sexual misconduct. And it says that steps need to be informed by the nature and severity of the issues faced by a provider’s students.

So let’s take the performing arts issue as an example.

Multiple dramas

Most of the small performing arts providers that are on the register are likely to have all sorts of sessional/guest staff who come in and out of the provider and who may end up having some sort of bearing on a student’s career – or at least implying they do in return for sexual favours. There’s also a never ending stream of tales about inappropriate behaviour in some of the settings they “guest” in – think the Strictly scandal, only worse and more endemic.

I don’t think they would fit the definitions of direct professional responsibilities implied above. But what I know from years of casework with SU officers and a stream of media scandals in these sorts of provider is that there’s a lot of staff-student relationships around; that many of them are clearly an abuse of power; and that if a provider was just being straight-asked to risk assess whether their students might experience abuses of power from non-direct professional responsibility staff and to prevent them, they’d institute a ban.

I have had it suggested to me – repeatedly over the past few years – that such a ban would see some performing arts providers struggle to get the guests in. If that’s the case, so be it.

Of course if I was Principal of the Watford North Theatre Company College or whatever, my college probably doesn’t award the degrees – so I’d need to agree my approach with the university validating or franchising my provision. That policy may not match that of the franchising or validating provider because of a different risk profile – and it may not match that of anyone else validating any of the rest of my provision if I have multiple partners.

That does also open up the question of campuses, or even individual departments – if the University of Essex has one policy for most of its provision in Colchester, but a more widespread ban on SSRs at its East15 Acting School provision in Loughton, we might then ask why others don’t have dedicated policies for their performing arts provision on (the main) campus. Essex would need to consider its Drama provision in Colchester too. The potential for inconsistency and confusion spreads like knotweed the more you think about it.

Supporting students

There would then be a need, if providers get this right, to consider support. OfS says that taking steps that could make a significant and credible difference would lead to a reduction both in the prevalence of harassment and/or sexual misconduct and would protect a provider’s students from their impact, for example through support for students who have experienced incidents of harassment or sexual misconduct.

“Appropriate support” means the effective deployment of assistance, including but not limited to support targeted at the needs of students involved in any way in an incident of harassment and/or sexual misconduct, including but not limited to during an investigatory and decision-making process, as well as personal and academic support.

The OIA talks about support too. It says that providers should direct students to the support services available, “for example the students’ union”, which can provide independent support and advice. This applies to students who are going through student disciplinary procedures and to students who are providing information about someone else’s conduct that is being considered under those procedures:

It is good practice to give students access to support and advice and, where it is not practicable to do so internally, providers should consider arranging for students to access support services at neighbouring institutions, partner providers or other local community services.

What we again know about small performing arts cultures is that there’s likely to be more of a need for independent support (because students will assume anyone they talk to in the provider will be on the provider’s side or gossip about them) but less access to it – because SU provision in such providers is so poor.

That poses a dilemma for the validators and franchisers. If a student being harassed in the main provision can access the SU advice centre, but a student at the Watford North Theatre Company College doesn’t even a proper course rep system, there’s an obvious disparity problem.

And even for the TDAP-adorned Conservatoires with an SU, a sole elected sabbatical officer is hardly the right kind of independent support – not when said student officer is untrained, and likely to be lazily plonked onto any ensuing disciplinary panel where there’s a student on student case.

It’s not as hard as it looks

There are ways round all of this, of course. A universal and outright ban on staff that work in HE providers initiating intimate personal relationships between them and students would do few any harm, and prevent plenty of it. Guild HE, IHE, UUK, UCU and NUS should just sign a thing. And a universal entitlement to independent support in the event of a complaint or appeal is an odd right to deny students in the UK when much of the rest of Europe guarantees it.

The complexity of programme and student risk assessment (and resultant potential for inconsistency), as well as the complexity of validation and subcontracting venn and spider diagrams pretty much mandates the former. And the result of any well done consultation with students (also required in E6) really does lead to the latter.

Groups of smaller providers should be collaborating now on their SU provision when it comes to complex cases – especially groups like Conservatories UK – and OfS/OIA ought to be insisting on a “students union of last resort” for the hundreds of providers on the OfS register that don’t appear to have one.