Only weeks ago few people had heard of Everyone’s Invited, a movement and online platform founded in June 2020 for individuals to share anonymous testimonies of sexual assault, sexual abuse, harassment and misogyny.
Then, in March 2021, media scrutiny intensified by the death of Sarah Everard placed the spotlight initially on schools before extending to higher education, and very quickly triggered a response from the government and the Office for Students (OfS).
Given the high proportion of school leavers who progress to university it was arguably only a matter of time before the focus widened to include higher education providers. On 15 April 2021, following the submission of more than 1,000 testimonies by current and former students, Everyone’s Invited published a list of the universities involved. As of 5 May, around 140 HEIs had been named from across the UK, the USA, Australia, France, Germany, Italy and Albania. Of the UK institutions, many are in the Russell Group and 10 are mentioned in 36 or more testimonies.
The fact that students in higher education are usually adults does little to alleviate the trauma and long-term impact of sexual harassment and abuse. Nor does it change the fact that universities have a duty of care to students which extends to the provision of a safe environment in which to live and learn. Recognition that the 1994 Zellick guidelines, regarding how HE providers should manage misconduct that may constitute a criminal offence, included a number of questionable recommendations led to the sector looking at its approach again – but change took time.
A number of projects and initiatives contributed to the debate, from the 2010 NUS Hidden Marks report to the Changing the Culture campaign launched by UUK in 2015. New guidance in 2016 provided a welcome set of practical recommendations for institutions dealing with sexual misconduct, addressing misconceptions about the basis and scope of the student disciplinary process and emphasising the importance of information sharing and the provision of support.
Subsequent annual reviews found evidence of improvement but also persistent barriers to progress including a lack of sustainable funding, adequate training and a consistent approach across the sector as a whole.
Just as important was recognition of the need to establish a culture of zero tolerance that bridges the transition from secondary to tertiary education, something that Everyone’s Invited has brought into sharp relief.
In terms of the size of the UK student population, which is around 2.5 million, the number of testimonies is relatively small. Unsafe Spaces, a study completed last year, estimated that around 50,000 incidents of sexual harassment and assault take place in HEIs each year. Nevertheless, the impact of Everyone’s Invited has been dramatic and, with more than 16,000 testimonies published, addressing this issue has again become a priority for regulators and the HE sector as a whole.
On 19 April, the OfS called on HE providers in England to urgently review their policies, systems and procedures ahead of the new academic year and published a Statement of Expectations.
Originally devised following a 2020 consultation delayed by the pandemic, the Statement covers sexual misconduct as well as harassment connected to a range of protected characteristics. It provides a standard for all registered institutions requiring demonstrable commitment, engagement and a clear strategy that includes governance accountability lines, a statement of behavioral expectations and adequate staff and student training.
Policies and procedures must enable the disclosure and reporting of abusive behaviour (including anonymous and third party reports) and facilitate an institutional response that is fair, clear and accessible. This must include an adequate disciplinary regime and the ability to deal appropriately and consistently with student complaints and appeals.
The range of actions that may result from an investigation must be visible and explicit and it must also be clear how confidential information will be used and shared. Emphasis is placed on providers ensuring students involved in an investigatory process have equal access to effective support, whether as the reporting or responding party, and that disclosures are dealt with within a reasonable time frame.
While the Statement contains only recommendations and not regulatory requirements (and is not therefore subject to the OfS’s enforcement powers), the OfS is considering the possibility of connecting the Statement directly to specific conditions of registration. We can also expect recent developments to have an impact on the OfS’s new guide to preventing and addressing harassment and sexual misconduct in universities and colleges.
The possible connection between the Statement and the OfS’s conditions of registration highlights the importance of engaging with the Statement from a governance perspective.
The Statement itself specifically identifies that the governing body of a provider should ensure that their approach to harassment and sexual misconduct is adequate and effective.
This reflects the central and general duty owed by the members of a governing body to act in the best interests of their provider (where, as is generally the case, the provider has charitable status), including in relation to the wellbeing of students and the provider’s reputation.
The Statement identifies a number of governance aspects which governing bodies (and those with delegated responsibilities in relation to governance) will wish to understand, including ensuring that a systematic approach to tackling harassment and sexual misconduct is embedded within the provider’s governance structure in order to facilitate effective oversight and that the governing body is routinely given information on the provider’s approach to these issues and the action taken in response. As ever, it will be important that members of the governing body have a clear understanding of the issues and how they relate to their duties – this is also highlighted in the Statement.
Irrespective of whether the OfS does decide to link the Statement with the registration conditions, these areas may need to be promptly reviewed and if necessary changes to a provider’s governance arrangements made to reflect the considerations highlighted by the OfS.
The high public profile of Everyone’s Invited has re-emphasised the relationship between HEIs and their communities and the extent to which institutions should be responsible for the welfare of adult students. It remains rare for legal action to be taken against providers but there is no dispute that they owe their students (and staff) a duty of care and have statutory obligations to provide a living and learning environment free from discrimination. Gender is a relevant protected characteristic because complainants of harassment and sexual abuse are more likely to be women, but other protected characteristics such as race should not be forgotten.
All providers will doubtless be reviewing the systems they have in place to ensure that their students feel safe and confident that reporting and response mechanisms are accessible and effective, including reviewing the efficacy of their governance structure and the role of their governing body.
There is an opportunity to build on the progress already made by clarifying and consolidating safeguarding procedures thereby taking steps that pre-empt what are highly likely to become mandatory requirements in the near future.
VWV is a leading, national education law firm. Kris Robbetts, a partner in the HE regulatory compliance team, can be contacted on 07795 662 796 or at firstname.lastname@example.org.
Con Alexander, a partner in the HE governance team can be contacted on 07730 731 089 or at email@example.com.
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