Accelerating change: sexual harassment in universities

Today, we focus on higher education—a sector that has wrestled with the issue of sexual harassment and abuse for a long time—in the aftermath of these testimonies. Nearly 120 universities, mostly from across the UK, have been named by Everyone’s Invited.

In the wake of the testimonies and related media coverage, England’s university regulator—the Office for Students—published its statement of expectations, outlining the practical steps universities and colleges should take to tackle harassment and sexual misconduct.

At the time, Nicola Dandridge, Chief Executive of the Office for Students, said, “despite some improvements, progress has been uneven. We still see a lack of consistent and effective systems, policies, and procedures across the sector. As a result, students continue to report worrying cases that have not been properly addressed by their university or college.”

Before we get started, it’s important to outline the law. Sexual violence is a crime—rape and sexual assault are sexual offences.

Sexual harassment, which consists of unwanted behaviour of a sexual nature, can amount to a breach of the Equality Act 2010 (the “Act”). Employers and service providers in this case a university can be held vicariously responsible where a staff member is the perpetrator. Also under the Act, universities must ensure their policies, including those that govern the handling of sexual harassment complaints, must not be discriminatory.

A (brief) history lesson

In 1994, the Zellick Report was published, providing advice to universities on dealing with a student’s serious misconduct where it might also constitute a criminal offence. While the report is now outdated, at the time, it was a crucial piece of guidance for universities.

Fast-forward to 2016, when Universities UK published replacement guidance for universities on how to handle student disciplinary issues where the alleged misconduct may also constitute a criminal offence. In a significant departure from Zellick, the new guidance recommends:

• Maintaining a clear distinction between an internal disciplinary process and a criminal process – the criminal process must take priority.
• Universities should consider implementing precautionary measures relating to a student who is alleged to have committed a criminal offence at an early stage, pending the outcome of criminal/disciplinary proceedings. These precautionary steps must be reasonable and proportionate.

Issues remain

While guidance for universities may be clearer and more thorough than ever before, the thousands of testimonies on Everyone’s Invited are clear evidence that sexual harassment and assault is still taking place across UK universities.

This conclusion is bolstered by surveys and investigations. Nearly two-thirds (62%) of all students and recent graduates surveyed have experienced sexual violence, according to a survey by Revolt Sexual Assault and The Student Room.

And, in 2019, a BBC investigation found that reports of rape, sexual assault, and harassment at UK universities had trebled in three years, from 476 recorded allegations in 2016-17 to 1,436 allegations in 2018-19. According to the BBC, the increase may partially reflect the fact that some universities have made it easier for students to report allegations and receive support.

Accelerate change

The overwhelming message here is that universities need to accelerate their efforts to stop sexual harassment and violence to protect their students and staff and provide a safe environment.

The Higher Education Funding Council for Wales—the body responsible for funding the higher education sector—has also produced guidance and case studies on tackling violence against women, domestic abuse, and sexual violence in higher education in a circular published in November 2020.

While the Office for Students’ statement of expectations (which includes staff training and a clear statement of behavioural expectations for all students, staff, and visitors) are not regulatory requirements, the regulator expects English universities and colleges to review their policies, systems, and procedures before the next academic year.

Over the next year, the regulator will examine how universities and colleges have responded and, as part of the process, it will consider options for connecting the statement directly to its conditions of registration.

Without clear, up-to-date, and well-thought-out policies, universities are also leaving themselves open to significant risks, including legal claims or a damaged reputation.

If you wish to seek advice about sexual harassment policies or how to tackle issues that arise in practice, please contact Trish D’Souza or Jonathan Walsh.