The Office for Students (OfS), the regulator for higher education providers in England, is consulting on whether academic staff should report relationships with students. It is the OfS’s latest suggestion to try to combat sexual harassment/misconduct within the higher education sector. The apparent prevalence of sexual misconduct has not abated despite the OfS providing £4.7million to 119 projects to tackle sexual misconduct, online harassment and hate crime.
The OfS proposes that a relationships register would apply where a staff member has particular responsibilities towards a student, for example assessing a student’s work. In the alternative, the OfS is consulting on whether there should be an outright ban on staff/student relationships – not its preferred option.
The consultation proposes that any academic not disclosing such a personal relationship should be liable to be dismissed. This could prove controversial in practice as could a failure to comply with internal policies in not reporting a relationship, which results in disciplinary action. In particular this could lead to arguments over a person’s right to a private and family life under the European Convention on Human Rights.
As self-regulation has led to slow progress in decreasing the number of complaints of sexual harassment and misconduct, the OfS proposes to impose a new registration condition on universities and colleges. This includes the obligation to publish a single document explaining the steps the institution takes to protect students and training staff and students about how to recognise issues. The OfS wishes to place enforceable obligations to prevent sexual misconduct marring the student experience.
In its consultation, the OfS makes clear that it does not consider that the desire to tackle unlawful harassment is at odds with free speech and academic freedom. Unlawful speech (which is discriminatory or harassing) is not protected by the law. In terms of academic freedom, the principle of exposure to a range of views – even some controversial or not widely held – does not mean that students should be exposed to discriminatory behaviour or detriment. The OfS’s concern appears to be that a staff and student sexual relationship has the potential to cause detriment if, in certain circumstances, it goes on without an employer’s knowledge of it.
The OfS consultation is open until 4 May 2023. It remains to be seen whether higher education providers consider the need to report relationships is a good idea or has the potential for interference in the private lives of academic staff and students.
Blake Morgan has significant expertise in advising academic institutions on student and staff sexual misconduct investigations and procedures. If you have any questions regarding a response to the OfS consultation or in relation to staff-student relationship cases, then please do contact us.
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