Sexual harassment and regulatory changes: a #UHR23 blog from Eversheds Sutherland

The effective management of sexual harassment and sexual misconduct remains a key issue for Universities. Higher education providers are under close scrutiny in relation to the adequacy of the measures in place to prevent sexual misconduct, their responses to incidents of sexual misconduct and how they support students and staff affected by such misconduct. In addition, strategies for preventing and responding to sexual misconduct are increasingly seen as a focus for higher education providers’ environmental, social and governance agendas.

Staff to student sexual misconduct is a particularly challenging area. Recognising this, Universities UK last year published a suite of documents on “Changing the culture: tackling staff-to-student sexual misconduct”. This included an Eversheds Sutherlands’ Guide to the Legal Framework in this area, written by our HE sector specialists, and addressing difficult issues including confidentiality and information-sharing and the interface between staff and student procedures.

Further regulation is expected later this year following the Office for Students (OfS) consultation on “a new approach to regulating harassment and sexual misconduct in English higher education” which closes on 4 May 2023.

This consultation follows the OfS “statement of expectations” (April 2021) which set out recommendations to support higher education providers in England to develop and implement effective systems, policies and processes to prevent and respond to incidents of harassment and sexual misconduct.

An independent evaluation of the statement of expectations published in November 2022 found that the statement had led to improvements in providers’ policies, systems and processes, and increased attention to addressing harassment and sexual misconduct, particularly from senior leadership teams and governing bodies. However, it also found slow and inconsistent progress across the sector, and recommended further regulatory intervention to ensure providers address these issues appropriately.

• The core proposal in the current OfS consultation is to impose a new ongoing condition on registered providers in relation to harassment and sexual misconduct which would require providers to:
• develop and publish a single document with minimum content requirements
• have the capacity and resources necessary to facilitate compliance with the condition
• comply with the requirements of the condition in a manner consistent with protecting free speech
• prohibit any contractual provisions that prevent or restrict someone from disclosing information about an allegation of harassment or sexual misconduct which affects one or more students
• put in place provisions in relation to personal relationships between students and relevant staff

The consultation proposes a wide definition of “harassment” which would include the definition in the Protection from Harassment Act 1997 – this is potentially problematic as it is not typically used in student and staff policies in the sector.

Another area of focus for institutions is the Worker Protection (Amendment of Equality Act 2010) Bill currently making its way through the House of Lords. If passed, this would reintroduce liability for third party harassment of employees (eg a student or customer harassing an employee) but importantly will not require (as before) there to have been two previous incidents of third party harassment. One harassing event would trigger liability if the institution failed to take all reasonable steps to prevent it.

Another important change, if passed, would be a new duty on employers to take all reasonable steps to prevent sexual harassment of their employees. The Equality and Human Rights Commission would have stand-alone powers to enforce this duty. In addition, tribunal compensation in successful sexual harassment cases could be increased by up to 25% where the employer has breached this duty.

We will be exploring these themes in our Conference legal session at 4pm on Tuesday 9 May.  We’d be delighted if you could join us.

Nicola Bennison and Chris Mordue, Partners in Eversheds Sutherland’s UK and International Education Practice