GOOD PRACTICE FRAMEWORK: HANDLING REPORTS ABOUT HARASSMENT AND SEXUAL MISCONDUCT  - Describing an appropriate environment for students

Setting clear expectations about behaviour

23Providers should publish information for students and prospective students about the standards of behaviour that are expected of them, and that they can expect from others in the community. Providers often set out their expectations in student disciplinary regulations or student codes of conduct.

24Setting clear expectations may prevent some unacceptable behaviours from occurring. A shared understanding of what behaviours are unacceptable also helps students who experience unacceptable behaviour to recognise that they do not have to tolerate that behaviour, and that they can seek support from the provider.

25Providers should explain to students the potential consequences of behaving in a way that doesn’t meet the expected standards. A provider’s rules and regulations should enable it to take action if standards of behaviour fall below what is expected.

26It is helpful for the rules and regulations to set out that the outcomes of any formal disciplinary processes used to investigate reports of unacceptable behaviours may not be confidential, where other members of the community have an interest in knowing the outcome or regulatory conditions require that persons directly affected are informed about the decisions.

27It is particularly important to draw attention to these standards of behaviour when students begin their studies. It is good practice to remind students periodically about the standards of behaviour that are expected of them and that they can expect of others, for example when students progress to a new level of study.

28It is helpful to explain to students when and where they will be expected to meet the provider’s standards of behaviour. For example, providers may consider including:

a.    That standards of behaviour apply to students’ conduct in person and in online or virtual spaces.

b.    That standards of behaviour may still apply outside the physical spaces the provider owns or manages, and outside the virtual/online environment that it owns or manages, where the behaviour may have an impact on its community.

c.    That students may also be subject to separate standards of behaviour overseen by other organisations that they interact with during their studies, including within student accommodation owned or managed by another organisation; spaces owned or managed by a student representative body (SRB); spaces owned or managed by a placement provider or by the employer of an apprentice.

d.    That students on courses leading to a qualification in a regulated profession may be subject to additional higher standards of behaviour as required by the regulatory bodies of that profession.

e.    How standards of behaviour apply for the duration of the students’ relationship with the provider including:

• i.    expectations of people who have accepted an offer to study at the provider but who have not yet enrolled or registered, particularly on any “pre-enrolment” activities including opportunities to meet other students virtually.
• ii.    expectations of behaviour in between term-times or  years of study where a student is pursuing a qualification that takes more than one year.
• iii.    expectations of behaviour between completion of study activities and the formal conferment of the award.

f.    Expectations of behaviour when a student is not currently actively studying (for example, when a student has temporarily paused their study due to ill health, maternity, etc).

g.    Where relevant, providers may consider developing explicit guidance about standards of behaviour that apply in the context of intimate or physical pedagogic practices (e.g. performing and creative arts).

29Many providers offer their students the opportunity to live and study in a diverse community and this may be a new experience for some students. Providers may 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. Providers may decide to deliver additional targeted guidance to groups of students within their communities if their own data suggests this would be appropriate.

Defining unacceptable behaviour

30Providers should use clear language to describe the behaviours that are not acceptable within their community. It is usually appropriate to indicate broadly the types of behaviour that are not acceptable rather than attempt to provide an exhaustive list of specific actions.

31Providers regulated by the OfS or providers working in partnership with providers regulated by the OfS should note the definitions it uses. The OfS follows the meaning given to harassment in Section 26 of the Equality Act 2010 and Section 1 of the Protection from Harassment Act 1997 (in its entirety, and as interpreted by section 7 of the Act).

32Harassment (as defined by section 26 of the Equality Act 2010) includes unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person related to one or more of the person’s relevant protected characteristics, including perceived characteristics. (Under the Equality Act’s definition, marriage and civil partnership and pregnancy and maternity are not relevant protected characteristics for these purposes.)

33In deciding whether conduct has the effect referred to, providers must consider:

a.    The perception of the person who is at the receiving end of the conduct;

b.    The other circumstances of the case; and

c.    whether it is reasonable for the conduct to have that effect.

The last point introduces an element of objectivity into the test. In the context of section 1 of the Protection from Harassment Act 1997, an offence is committed only if the person knows the conduct amounts to harassment of the other, or a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other person. The perception of the person who is at the receiving end of the conduct is not the only relevant consideration in determining whether the conduct amounts to harassment that would meet the statutory definitions. The context within which the alleged harassment has taken place will also be relevant, as will any other legal rights or duties that apply in that context.

34The OfS has set out areas of regulatory activity for which these definitions are relevant. These definitions do not include all the behaviours which may be unacceptable within a higher or tertiary education community.  Providers should clearly set out any other interpersonal behaviours which are unacceptable, but which may fall outside the definitions used by the OfS for the purpose of regulation.

35For providers that are public authorities, it may also be relevant to consider whether, in cases of alleged harassment, the responding person was exercising any of their rights under the European Convention on Human Rights and the Human Rights Act 1998 (e.g. freedom of expression or freedom of thought, conscience and religion). In setting the standards of behaviour expected within their community and responding to disclosures and reports from students, providers must consider their obligations to protect freedom of speech under the Higher Education (Freedom of Speech) Act 2023, the Human Rights Act 1998, the Education Reform Act 1988 and the Education Act (no.2) 1986. The OfS' Regulatory Advice 24: Guidance related to freedom of speech includes practical guidance, for providers registered with the OfS, on their duty to take steps to secure freedom of speech within the law for students and others. Providers should explain to students that they should expect to interact with individuals who hold different views to their own and that holding views and expressing them in a lawful way, even where some might find these views to be controversial, offensive, disturbing or shocking, will not usually be a matter for the provider’s formal processes.

36Providers 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 could amount to unacceptable behaviour in some circumstances. It is helpful to set out the factors which are relevant to deciding whether how a student expressed their views could be unacceptable behaviour. These include:

a.    The context in which the views were expressed. Something that is acceptable in one context, such as expressing controversial or unpopular views in a teaching session, formal debate or organised protest on the topic, may not be acceptable in another such as within a teaching session intended to focus on a different topic; or a work-based placement.

b.    The manner of expression. For example, not allowing others to join a discussion or finish their point, talking over other people, shouting; using expletives or derogatory language; using offensive gestures, physical contact or other intimidating body language.

c.    Whether the expression of the views was directed towards any specific individuals or specific groups, or whether any individual was singled out to provide a response.

d.    Whether the expression of views was of inappropriate duration or timing. For example, preventing a class from exploring necessary academic content by undue persistence on a particular point; sending an unreasonable volume of messages; continuing to pursue a discussion after being asked not to continue to do so.

e.    Whether the expression of views took place in such a way as to suggest, inaccurately, that they were representative of the views of the provider.

f.    Whether the expression of views is consistent with any specific professional standards of behaviour that the student is reasonably expected to follow as a student on a course that leads to entry to a regulated profession.

37It is helpful for providers to include a definition of victimisation. Victimisation (as defined by section 27 of the Equality Act 2010) occurs when a person is treated worse than before because they have in good faith done a 'protected act'. Victimisation can also occur when a person is thought to have done or intends to do a 'protected act'. In the context of harassment, a 'protected act' might include but may not be limited to: making a disclosure or report of harassment or indicating an intention to do so; helping someone else to make a disclosure or report of harassment; and participating in an investigation of a report such as acting as a witness. A person would not be protected from victimisation where they deliberately make or support an untrue disclosure or report. 

Neutral language

38Providers do not have powers to make legal findings of the kind that a criminal or civil court or tribunal might make. Even when a particular action carried out by a member of its community could be a criminal offence, a provider can only ever decide whether that action is in breach of the standards of behaviour it expects from its students or staff. The OfS has adopted legal definitions of harassment and sexual misconduct. But use of these definitions does not mean that providers can reach conclusions about criminal offences. Nor does this language create a requirement for a provider to use a criminal standard of proof in its own internal investigations. Providers should apply the civil standard of proof, “on the balance of probabilities”. Providers should make this clear to students.

39Providers should avoid other legalistic language that suggests that its processes replicate those of courts or tribunals. Terms that may be problematic include deciding if a responding person is innocent or guilty, referring to the reporting student as the victim or the survivor and referring to the responding student or member of staff as the alleged perpetrator, the defendant, or the accused.

40It is good practice for providers to use language that is neutral and does not presume that the behaviour being reported has or hasn’t met the provider’s expected standards of behaviour before an investigation into what has occurred has taken place. Providers should try to balance this with language that encourages students to disclose or report behaviour that has caused them concern. A reporting person may describe an incident or experience using different language to that which a provider uses in its written materials. In the context of providing support, providers may reflect that language back to the reporting person.

41Language in this area is constantly evolving. Providers should keep the language they use under review. It is good practice to consult with students to make sure that they will understand what the provider is intending to convey. Providers may also wish to consult with their staff.