Office of the Independent Adjudicator (OiA) Good Practice Framework: Handling reports about harassment and sexual misconduct

The framework sets out core principles and operational good practice for providers in England and Wales and follows a major consultation by the complaints watchdog into university sexual harassment procedures, including with consulting practitioners, sexual violence liaison officers and student advocates. It is intended to support providers in developing good practice in addressing disclosures and reports about harassment and sexual misconduct and will help providers to meet regulatory requirements. The 70-page document contains detailed advice covering all aspects of dealing with reports of sexual misconduct and harassment, including working with partnerships and student representative bodies (SRB), non-recent reporting, anonymous disclosures and referrals to police.

At-a-glance:

• Providers should provide clear, accessible information to students about the standards of behaviour that apply to students, the behaviours that are not acceptable and the potential consequences of behaving in a way that doesn’t meet the expected standards (p8)

• In deciding whether conduct constitutes harassment and sexual misconduct, providers must consider the perception of the person who is at the receiving end of the conduct, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect. The last point introduces an element of objectivity into the test. The perception of the person who is at the receiving end of the conduct is not the only relevant consideration (p10)

• Providers should explain to students that despite their right to hold and express views that are controversial or unpopular, how they choose to express their views, and when, could amount to unacceptable behaviour in some circumstances (p11)

• A “trauma-informed approach” should be taken, which should centre on the wellbeing of students who report an incident. This is more important than sticking rigidly to a set of process steps (p18 and press release)

• As a baseline, providers should ensure that staff who are designated to receive disclosures and reports, staff who investigate reports, and staff who make decisions under formal disciplinary procedures, understand that trauma may affect how students engage with complaints processes (p18)

• Providers should enable students to share information about harassment and/or sexual misconduct via a range of routes, including in person, via telephone or video call, and online. Providers should explain to students there may be some limits on how it can respond to information that is shared anonymously, or is not recent (p24)

• Providers should help students who have made disclosures or reports to understand the various options available to them and provide them with support in deciding how to proceed (p30)

• When a disclosures or report is made, providers should undertake a risk assessment to consider whether there are any immediate safeguarding or welfare concerns. Precautionary measures can also be considered eg ensuring reporting and responding students/staff are not required to work closely together (p32)

• Providers must decide what action to take in response to a disclosure or report by weighing up the interests of the reporting student and the risks it has identified. Whatever approach the provider decides to take, it should document its reasons for the decision and explain this to the reporting student including timeframes for next steps (p36)

• Where a formal investigation is undertaken, providers should appoint investigators who are not providing wellbeing support to the students involved. Investigators should exercise their judgment about the manner and extent of information gathering. They must approach gathering information from a position of neutrality, and endeavour to take an exploratory approach rather than an adversarial or interrogative one (p42)

• The length, depth and breadth of an investigation should be proportionate to the complexity of the behaviour being investigated, the severity of the penalties for proven misconduct, the severity of the impact on the reporting student and the continuing risks identified (p51)

• It is good practice for decision-makers to consider all the penalties available to the provider, beginning with the least severe. Decision-makers should record why they have selected a penalty. It is good practice to record why lesser penalties were not considered to be appropriate (p62)

• Providers should tell the responding student what the disciplinary findings are, what any penalties are, and how they may appeal this decision (p63)

• Giving a reporting student a formal outcome to their report is important. It will usually be appropriate to provide this information in writing so that the student has a record of it (p64)

• Providers should provide a route for reporting students to raise concerns about any aspect of their experience since making a report, including how they have been supported, questioned and kept informed, or the overall outcomes (p63)

• It is good practice for providers to learn from harassment and sexual misconduct disclosures, reports and complaints by collecting data and monitoring trends (p70)

Implications for governance:

Universities have given much attention to the issue of harassment and sexual misconduct in recent years and have improved systems for reporting concerns and handling complaints.

Despite this, the OIA’s annual report often contains warnings that these often complex and multi-faceted investigations are taking too long and that some students making reports are left feeling dissatisfied with the process and/or the outcomes.

The new good practice framework, which goes into all aspects of harassment and sexual misconduct report handling, is likely to be immensely useful to institutions, particularly in light of new requirements from the Office for Students for institutions in England to take steps to prevent sexual misconduct.

From a governor perspective, ensuing that processes and procedures support a fair and humane approach, and regularly monitoring this through the right data, is the goal.

The OIA is recommending that a “trauma-informed” approach is undertaken when reports are made of harassment and sexual misconduct, which prioritises the physical, psychological and emotional safety of individuals, including trying to prevent re-traumatisation. This is a specialist skill set and is likely to require training and therefore resources.

The framework also provides useful and timely advice on issues that might complicate reporting and handling complaints, such as where institutions have partnership agreements, including transnational education (TNE) partners. Working closely with student unions, which might well receive reports of misconduct directly and be an important source of support to students, is important, including establishing information sharing protocols.

Proactively drawing attention to expected standards of behaviour when students begin their studies is good practice, as is reminding students periodically of those standards.

Institutions may wish to “consider providing additional guidance for international students, who may need support to navigate significant differences in cultural norms and to understand what is or is not permitted under the law in England and Wales”, the OIA advises. Providers may decide to deliver additional targeted guidance to groups of students within their communities if their own data suggests this would be appropriate.

While supporting students who report concerns or allegations is recognised as good practice, the framework also suggests that where a responding student is removed from their course or required to interrupt their studies as an outcome, they should also be supported to allow them to access wellbeing services including counselling services.

Students subject to sanctions should have a right of appeal and the document covers what good practice looks like here. Reporting students should also be given a route to complain about their experiences since raising a concern. Details around re-opening a disciplinary process are also provided.

Governors may want to reflect on the “learning from reports and complaints” section, which explores improving processes through data collection and monitoring trends, and the development of training.

The OfS condition of registration E6 places requirements on institutions to collect, monitor and publish data where this is likely to inform effective action to protect students from harassment and/or sexual misconduct.

Welsh providers registered with Medr must conduct an annual self-evaluation about staff and learner welfare, including an evaluation of the effectiveness of policies, procedures and support services to ensure freedom from harassment, misconduct, violence (including sexual violence) and hate crime. Meanwhile the Scottish Funding Council has published a thematic review covering related issues, entitled Feelings of Safety and Sense of Belonging in Scotland’s Tertiary Education Sector: A Thematic Review to Support the National Equality Outcomes.