The Office of Students (OfS) has published a new condition of registration for higher education providers. The new condition, ‘E6’, introduces requirements for institutions to protect students from harassment and sexual misconduct. The introduction of this new condition comes after a consultation that was launched in February 2023 on a new approach to regulation in this area. The consultation had been launched following an evaluation of progress made by the sector on a ‘statement of expectations’ published in April 2021. The new expectations and guidelines affect all higher education institutions and all students and academic staff in them.
The need for such a condition is real and pressing: a recent OfS survey found that some 20% of students have experienced unwanted sexual behaviour, with nearly 70% of these experiences involving some setting having to do with a higher education setting.
What are the new requirements on higher education providers under the E6?
- Policy requirement: All higher education providers registered with the OfS must publish and maintain a single comprehensive source of information (CSI) on how they handle harassment and sexual misconduct. This must meet minimum content and transparency requirements.
- Commitment to action: Providers must take steps designed to make a “significant and credible difference” in protecting students, with actions tailored to their specific risks and student demographics.
- Standardised definitions: OfS has set definitions of harassment and sexual misconduct, aligning with Equality Act 2010 and Protection from Harassment Act 1997. Sexual misconduct includes, but is not limited to, sexual harassment, sexual assault, and rape.
- Student awareness: Policies must be prominently published, public, and clear, ensuring students and prospective students can easily access them.
- Training obligations: Providers should implement mandatory training for students, witnesses, and staff, ensuring training is evidence-based and evaluated for effectiveness.
- Student support: Institutions must provide appropriate support for students involved in harassment or sexual misconduct cases, including tailored assistance based on individual needs.
- Reporting and handling: Providers must clarify how incidents can be reported, how reports will be handled fairly and sensitively, and how affected individuals will be kept informed.
- Conflicts of interest: Institutions must protect students from abuse of power in personal relationships between staff and students, with OfS recommending banning or regulating such relationships.
- Free speech considerations: Compliance measures must not unduly restrict lawful free speech, unless such restrictions are proportionate.
- Ban on NDAs: From 1 September 2024, institutions cannot use non-disclosure agreements (NDAs) to prevent students from sharing information about harassment or sexual misconduct.
- Regulatory oversight: OfS will adopt a risk-based approach to monitoring, focusing on providers most at risk of non-compliance.
- Enforcement Actions: If breaches are found, providers may face fines, increased regulatory requirements, or even suspension of their registration.