Preventing harassment and sexual misconduct in the higher education sector

Protections for students and new statutory duty on employers

The Office for Students (OfS) has introduced a new condition of registration for universities and colleges, aimed at preventing and addressing harassment and sexual misconduct. Providers have until 1 August 2025 to put measures in place to meet the new condition, but it is important to note that a new statutory duty for employers to prevent workplace sexual harassment also comes into force this Autumn.

While the new OfS rules do not apply to students’ unions, the new duty on all employers to take reasonable steps to prevent sexual harassment in the workplace will apply to students’ union employers.

New OfS Condition of Registration

The new condition of registration requires universities and colleges to take measures to prevent and address harassment and sexual misconduct. This condition requires providers to:

• Publish and maintain a single comprehensive source of information which is prominent, public and clear, such as a webpage or single document, which sets out how they will deal with harassment and sexual misconduct;
• Inform students about their policies so that students understand them;
• Explain how students will be supported if they wish to make an allegation or complaint, have experienced harassment or sexual misconduct, or are actual or alleged perpetrators of harassment or sexual misconduct;
• Set out how students, staff and others can report behaviour which may amount to harassment and/or sexual misconduct;
• Include information about how they will handle the information they receive sensitively and fairly;
• Make sure that decisions are credible, fair and reflect principles of natural justice;
• Train their staff appropriately so that they understand and follow the provider's policies and procedures.

Providers are also required to take steps to protect students from conflicts of interest, abuse of power and the detrimental or favourable treatment that can arise from personal relationships between staff and students. The condition does not require providers to place a ban on intimate personal relationships but suggests that this is one step which could be taken to comply.

Ban on Non-Disclosure Agreements (NDAs) from 1 September 2024

One of the significant changes introduced by the OfS is a ban on higher education providers using NDAs in cases of harassment and sexual misconduct. NDAs may have previously been included in compromise or settlement agreements and other contracts to prevent students from speaking out about their allegations or experiences, usually with the aim of protecting the institution’s or staff reputation.

Under the new condition of registration, providers are prohibited from entering into NDAs with students that restrict them from making disclosures about harassment and sexual misconduct.

New Duty on Employers to Prevent Sexual Harassment

In addition to these upcoming rules for higher education providers, a new legal duty on all employers to take reasonable steps to prevent sexual harassment of their employees comes into effect on 26 October 2024 under the Worker Protection (Amendment of Equality Act 2010) Act 2023. Previously employers could defend a sexual harassment claim on the basis that they had taken such steps, but there was no proactive duty to do so.

Employment tribunals will have the power to uplift sexual harassment compensation by up to 25% where an employer is found to have breached the new duty.

For further detail on how employers can prepare for this new duty, please see our article from March 2024: How to get ready for the new duty to prevent sexual harassment of employees.

Possible future reforms

Sexual harassment in public, at work and in education institutions has been high on the agenda since the start of the #metoo movement in 2017 and our students’ union clients have seen an increase in complaints and issues arising from allegations of this kind. We are now seeing regulatory and legislative changes to try to tackle this issue and there are likely to be further developments in future. 

In its Plan to Make Work Pay, Labour has made clear its aim to tackle sexual harassment at work by strengthening the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts. Labour has also expressed an intention to strengthen protections for women who report sexual harassment at work under whistleblowing protections. It is possible that we could see in future a new statutory code of practice for employers on sexual harassment, something which has long been discussed but has not yet been forthcoming.