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Guidance from Universities UK - 'Changing the culture: tackling staff-to-student sexual misconduct'

According to the Office for Students ('OfS'), students are more likely than others to be subjected to sexual harassment. Universities and Colleges therefore play an important role in tackling this issue and trying to reduce and indeed prevent sexual misconduct. The ways in which higher education providers do this, including the ways in which they respond to incidences of sexual misconduct on campus, is subject to close scrutiny from all angles. With the #metoo movement still creating waves and the Environmental, Social and Governance ('ESG') agendas of organisations coming into clearer focus, Universities and Colleges have no option but to ensure the topic of sexual harassment and misconduct is woven into their policies, procedures and practices.

It is against this backdrop that Universities UK has recently published its suite of guidance documents entitled 'Changing the culture: tackling staff-to-student sexual misconduct'. It includes strategic guidance, practical guidance, evidence results and a legal framework, collectively designed to help organisations navigating this difficult area. The report sets out a number of recommendations which it envisages will help institutions provide a safe and inclusive environment for both staff and students, including the following:

• Implement clear policies to tackle staff-to-student sexual misconduct and ensure policies are understood and used across the whole university
• Strongly discourage close personal relationships between staff and students. Where relationships do happen, the staff member should declare this and be removed from all responsibilities which could mean a conflict of interest
• Prohibit the use of non-disclosure agreements (NDAs) or confidentiality clauses in settlement agreements in sexual misconduct and harassment cases
• Encourage people to report concerns, with more effective support and protection for those who speak out, including those who prefer to do so anonymously
• Collect and keep records on reports of staff-to-student sexual misconduct to help the sector see and understand the problem
• Establish joined-up thinking across human resources and student services and ensure that staff and student policies and practices work together

This last recommendation around the links between HR and student services is paramount to working towards the effective handling of, and prevention of, sexual harassment on campuses. Dealing with staff to student harassment as solely an employment law issue, or solely a student complaint issue, is risky for institutions who should be aiming for a holistic approach to ensure that all parties are not only protected as far as possible, but are treated in accordance with their legal rights.

The legal framework guidance contained within the recent publications provides important information to institutions on the relevant legal and regulatory factors which should be considered prior to the updating of, or implementation of the policies, governance rules and procedures which will be followed by providers when dealing with these sensitive matters. This includes helpful information around the extent to which students and staff have rights to information from not only a confidentiality and data sharing angle but also in light of an individual's right to natural justice.

Ensuring that procedures for handling student complaints and reports of misconduct, including harassment, are lined up with, and followed in conjunction with, those which govern the handling of the conduct of a member of staff (to the extent it is lawful under information sharing principles) can give rise to practical difficulties. Often institutions are wary of overlapping the two frameworks for fear of allegations of procedural unfairness and breaches of confidentiality, however a failure to do so is, in our view, riskier. Failure to link up the two can lead to a failure to focus on the welfare of the individuals involved, and the missing of key pieces of information. One of the aims of the report and the guidance is to address and recognise the power balance which exists between staff and students, and the fact that the balance can result in an unwillingness of students to speak up. Keeping the student and staff processes entirely separate can lend itself to factors such as this being undervalued or even overlooked altogether.

Training plays a key part in responding to the recent guidance and ensuring that it is followed in order to minimise future legal risk. Training on the obligations institutions have, and how to manage the interface between staff and student procedures is something which all providers should consider and will help not only to raise awareness of the issues across different services, but is likely to lead to improved handling of very difficult issues at an early stage. Students who report incidents with members of staff need to feel heard, respected and involved in the processes which follow, not removed from them. Transparency of final outcomes is also an area which institutions need to carefully consider, and training on this in itself is recommended.

As a minimum, we recommend that the guidance is reviewed and followed as far as possible, with institutions seeking expert advice along the way. Written with input from the National Union of Students (NUS), survivor groups including Rape Crisis and The 1752 Group, staff unions, professional bodies and academic experts, the guidance is the result of years of work and ultimately is there as a tool to help not only Colleges and Universities as providers of a service and employers, but as quasi-public bodies with vast numbers of students and staff whom deserve the highest levels of protection when it comes to sexual harassment.

For more information contact Laura McHugh in our Education department via email or phone on 0161 918 0008. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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