The Office for Students (OfS) is the regulator for higher education in England. They impose certain requirements on universities and colleges which are designed to protect the interests of students. These requirements are referred to as ‘conditions of registration’.
In July 2024 the OfS published guidance on a new condition of registration dealing specifically with harassment and sexual misconduct. That condition, ‘E6’, came into force on 1 August 2025. As such, universities and colleges have had a year to ensure they comply.
This is the first step towards creating a unified approach to higher education providers’ handling of this sensitive issue, but does it go far enough?
The condition requires providers to:
- maintain a single ‘comprehensive source of information’, such as a single document or webpage, where students and staff members can locate all the relevant policies and procedures relating to harassment and sexual misconduct;
- ensure students have access to a process for reporting an incident of harassment or sexual misconduct and explain how they will investigate, reach decisions and allow for appeals. This information must include timescales for each stage;
- take steps to protect students from harassment and sexual misconduct by signposting the comprehensive source of information and provide training to ensure students understand sexual consent and behaviour that constitutes harassment and/or sexual misconduct;
- ban non-disclosure agreements preventing students from disclosing information about an allegation of harassment or sexual misconduct (this part has been in force since 1 September 2024);
- make a significant and credible difference to protect students from any conflict of interest and/or abuse of power, for example by imposing a ban on intimate personal relationships between staff members and students;
- ensure that the staff/people responsible for receiving information about, investigating or making decisions on incidents of harassment or sexual misconduct are appropriately trained;
- that investigations undertaken and decisions made are credible, fair and reflect established principles of natural justice;
- provide support to students involved in any way in an incident of harassment and/or sexual misconduct, including but not limited to during an investigatory and decision-making process.
You would think that some of these are obvious, such as recommending a ban on intimate relationships between staff and students, but this is the first time a regulatory requirement has been put in place which deals specifically with this issue and still, some might say it isn’t perfect.
The guidance states that support must be provided to students involved in an incident of harassment and/or sexual misconduct, to include during an investigation and decision-making process, but does not specify where that support should come from i.e. whether it be internal or external. In our experience of representing students who have had a complaint made against them, it can very quickly feel like the university/college has taken the side of the reporter. An example being restrictive interim sanctions being imposed for the duration of the investigation, often putting them at a disadvantage academically and socially before anything has been evidenced, proven or decided. As such, any internal support offered by the provider e.g. their welfare officer, can feel like a box ticking exercise as opposed to genuine support. In one extreme example, our client spoke openly about the subject of a complaint/investigation to the university staff member assigned to support him, who then reported back to the investigator. The information our client had shared was included in the investigation report.
The OfS guidance includes definitions of harassment and sexual misconduct, however, it doesn’t go as far as to stipulate that providers use the same definitions in their individual policies. It also states that the staff/people responsible for investigating and decision making should be appropriately trained but does not specify what that training should entail or a single external training provider. Although this condition of registration is a step in the right direction, a single policy and process should be in place across all universities and colleges in England which would prevent the postcode lottery that currently exists. That is the only way to ensure that the process is fair and reflective of the principles of natural justice.
There is also the broader concern of whether higher education providers should be conducting these investigations at all. When a complaint is made of behaviour which amounts to a criminal offence, it is a curious and dangerous anomaly that leaves a panel of students and academic staff to decide what is right or wrong. Added to the procedural unfairness we often observe, it is the wild west of justice/inquisitorial processes. The implications of an adverse decision can be life changing and far reaching but can be mitigated by obtaining independent advice as soon as possible if a complaint is made against you.
About the author
Laura is a key member of Kingsley Napley’s Criminal Defence team. She represents clients in a range of cases involving serious and general crime. The main focus of her work is in criminal defence and police investigations, and she has particular experience of defending allegations of a sexual nature.
Join the conversation
