New OIA guidance on harassment and sexual misconduct: our first impressions

The Office of the Independent Adjudicator for Higher Education (OIA), which operates in England and Wales, last week published a new section of its Good Practice Framework. It focuses on how higher education providers should design and operate procedures for responding to disclosures and reports of harassment of any kind and sexual misconduct.

At Plinth House, we broadly welcome the new guidance. We are also pleased that the final version reflects some of the suggestions we made in our response to the consultation draft in February. However, some concerns remain, particularly around time limits, how we can best support decisions not to investigate, and anonymous reporting.

We particularly welcome the clearer explanation of when a Support for Study or Fitness to Study process may be more appropriate than disciplinary action, with the guidance incorporating the wording we proposed in our consultation response:

“[A Support for Study / Fitness to Study process may be appropriate] where the responding student presents a level of risk, to themselves or to other people, that is too high for the provider to manage through its normal support procedures. In some cases, this level of risk might be linked with a diagnosed or undiagnosed health condition, but it does not need to be.” (From paragraph 160)

This is considerably clearer than the framing in the consultation draft.

We also welcome:

• the clarification that the guidance covers harassment of any kind, given that the phrase “harassment and sexual misconduct” can sometimes be misread as referring only to sexual harassment and sexual misconduct.

• the firmer emphasis on providers being able to establish clear routes for reporting concerns and making disclosures. The consultation draft, in our view, overemphasised flexibility - stating, for example, that “Providers should exercise considerable flexibility in accepting reports from students that do not follow the preferred route”. Language along these lines has now been amended or softened in the final version. We believe this change will help providers define and implement clear and consistent protocols.

• the softening of the provision concerning students’ opportunity to raise concerns about the choice of investigator.

• the clearer explanation of terms such as ‘victimisation’, particularly where such terms have specific legal meanings.

• some of the minor improvements, compared with the consultation draft, to the guidance on online and anonymous reporting.

We nevertheless remain concerned about several aspects of the guidance, which we hope the OIA will address in future revisions.

We remain concerned by the extent to which the guidance steers providers away from setting time limits for students or former students to make disclosures or formal reports of harassment or sexual misconduct. Although this approach may be appropriate in more serious cases, harassment and alleged harassment come in many forms, and steering providers away from time limits in lower-level cases of harassment may, in our view, be unhelpful and disproportionate.

We also consider that the guidance could and should be even clearer about when a complaint should not proceed to investigation. One of the most important changes needed across the sector is greater confidence among providers to decide at an early stage that a student’s complaint of harassment should not be progressed. Some wording in the new guidance supports this approach, including the following passages:

“...A provider may also decide that it cannot take any further action to investigate reports that lack information about specific incidents or behaviours, that do not contain enough information to identify a responding person or are anonymous." (From paragraph 141) “Sometimes a reporting student may have shared a concern that could not amount to a breach of the provider’s expected standards of behaviour. For example, where the behaviour was carried out by someone who is not a part of the provider’s community, or where the incident would clearly not meet the provider’s definitions of harassment and/ or sexual misconduct. In these circumstances a provider should not pursue a disciplinary investigation even if that is what the reporting student would like.” (Paragraph 142)

However, in our view, this wording does not go far enough. Providers also need greater confidence to decide against conducting an investigation where an allegation concerns a political disagreement rather than harassment, or where the conduct complained of consists of a staff member, student or other person expressing views or beliefs protected by freedom-of-speech legislation or the Equality Act 2010. More explicit guidance from the OIA on these circumstances would have been helpful in the section on when not to proceed to an investigation.

The guidance does helpfully acknowledge the tension between freedom of speech and anti-harassment procedures. However, we would argue that, Equality Act case law is at least as relevant to the management of harassment casework as freedom-of-speech case law or rights under the European Convention on Human Rights, if not more so - given that Equality Act case law is more extensive and generally provides higher education providers with more detailed and practical principles to guide day-to-day institutional compliance.

The OIA guidance only seems to reference the Equality Act 2010 in relation to the Act's definitions of harassment and victimisation and to the duty the Act places on higher education providers to make reasonable adjustments to complaints procedures for disabled people. However, the OIA guidance does not appear to address beliefs protected under the Equality Act’s religion or belief provisions, including, for example, the protections that apply to gender-critical beliefs or to expressed opposition to critical race theory. Future versions of the guidance would benefit from explaining more specifically how anti-harassment procedures can be implemented without unlawfully interfering with people’s rights to hold and manifest protected beliefs under the Equality Act - an area of real complexity in practice right now for HE providers.

Anonymous reporting processes also remain a concern. In drafting Condition E6: Harassment and sexual misconduct, the Office for Students explicitly recognised their potential implications for freedom of speech. Condition E6 states that “Any mechanisms intended to support anonymous reporting of allegations of harassment [should be] implemented and explained to students and staff in a way consistent with the freedom of speech principles in condition E6 to ensure that they do not have, and do not risk having, a negative effect on freedom of speech.” We believe the new OIA guidance should have picked up the baton on this issue and grappled more directly with this tension in its sections on anonymous reporting.

Overall, we welcome the greater clarity provided by this new OIA guidance on harassment and sexual misconduct and we recommend that colleagues, particularly those who are responsible for work on harassment and sexual misconduct or who are more likely to need to respond to student disclosures, become familiar with its content.

______________________________________________

To read the new section of OIA’s Good Practice Framework, visit the OIA's website.

To find out more about our training at Plinth House, take a look at:

• the courses we can deliver live online to your team or higher education institution (up to 20 people can attend each session), or

• our online events - open for individuals from across the HE sector to attend.

or you are very welcome to get in touch with us to discuss your bespoke training requirements.