What does the new OfS consultation mean for the Higher Education sector?

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The OfS (Office for Students) consultation proposes a new regulation relating to harassment and sexual misconduct affecting students in registered higher education providers. The changes could mean better protections will be in place for students who experience these incidents and universities must take action to prevent them from happening as well as providing effective support when they do.

What is the OfS?

The OfS was established by the Higher Education and Research Act 2017, which also sets out its powers and general duties. They are the independent regulator of higher education in England, working with providers to make sure that students succeed. Although they are not part of the central Government, they do report to Parliament through the Department for Education (DfE).

More than 700 institutions that provide higher education (mainly universities and colleges) are currently registered with them. Ultimately, the OfS ensures providers are working in the best interests of their students.

The OfS consultation proposal

They are currently accepting responses and feedback to the proposed regulation until 4th May 2023, after which they will summarise the responses.

Culture Shift – as a leading provider of an anti-harassment system in UK universities – are in the process of writing our own response. There are many points we agree with and welcome the proposed implementation of, though some we are concerned about and would like clarification on or changing.

You can also download our Exceeding Expectations handbook which we wrote in response to the OfS expectations.

Culture Shift’s response to the OfS consultation

Below are the 5 main points written in collaboration with our Head of Culture Transformation, Vicki Baars, who has written our full response to the OfS consultation. We want to draw attention to these points that our partners and other universities may be interested in. This is due to the important amendments being proposed by OfS and what they could mean for them and students.

1. The proposal does not mention bullying

While we know sexual harassment is one of the main concerns and incidents that happens at all levels of study, we also know bullying is happening and having an adverse effect on students’ mental health and wellbeing, studies and desire to even drop out of university. In fact, University of Warwick’s annual report shows that bullying and non-sexual harassment are almost as prevalent as sexual harassment. At UCL, bullying, harassment and sexual misconduct shared the same percentage of reports made, while Queen Mary University of London found that bullying was by far the most reported incident type.

Bullying should not be taken lightly and by excluding it as well as discrimination from the proposal trivialises the impact of it. With our partners doing great work to prevent all forms of misconduct, to undermine that by prioritising sexual harassment, violence and misconduct could do more harm than good. The consultation does not define harassment as being the same or incorporating bullying, which some guidelines may do, and there are differences between the two.

We also have concerns about the use of solely legalistic definitions, especially those taken from the Sexual Offences Act which may actively contradict current practices in the sector. Furthermore, providers’ definitions are unlikely to be in line with legal definitions as they have explicitly been told to avoid criminal language in guidance issued by Pinsent Mason in 2016, which the sector has been implementing for the last 7 years. We do not agree with the move away from this approach and urge the OfS to reconsider.

2. We agree with a ban on staff-student relationships

Culture Shift supports a ban on personal relationships between students and  relevant staff. We believe this should be explicitly where there is a supervisory relationship or significant dynamic. Many of our partners already have policies which prohibit such relationships, such as the University of Nottingham, the University of Roehampton and the University of Greenwich.

However, all relationships between staff and students could still potentially mean there will be abuses of power, so this is something we urge all universities to consider.

3. We support the prohibition of NDAs

We believe in the power of anonymity for people who make reports but only if they choose it and we highly encourage people with access to reporting routes to use them with the confidence that they know action will be taken should they ask for it to be.

Therefore, enforcing NDAs does nothing to protect students or staff from speaking out about incidents and does more to protect the university’s reputation as well as the perpetrator.

4. Resourcing is necessary but how will providers carry it out?

While Culture Shift agrees with the OfS consultation that providers should properly resource this work to facilitate compliance with the condition, the catalyst funding provided a boost in capacity to do this work, many of the roles hired through that funding were fixed term. Momentum was often created and then responsibility for the work was transferred to permanent staff who don’t have sufficient free time to give this work the focus it needs. Specialist roles, skills and training are required to undertake this work safely and in a trauma-informed way. This requires investment in upskilling current staff or hiring new people who already have the skills.

How will the OfS support providers to prioritise this work in their budgets?

5. We are concerned that the Public Sector Equality Duty is not mentioned

We would like to see free speech duties which are heavily weighted in the consultation document more evenly balanced against other duties providers have to students such as the Public Sector Equality Duty which isn’t mentioned at all in the consultation. We believe the partners we work with already do a tremendous job balancing these duties and are concerned that the OfS consultation is being led by fear mongering that work to prevent and respond to harassment and sexual misconduct is in any way curtailing people’s freedom of speech or academic freedoms. 

The Public Sector Equality Duty is a duty on public authorities to consider or think about how their policies or decisions affect people who are protected under the Equality Act 2010. Its omission is concerning given its direct expectation on education providers to eliminate unlawful discrimination, harassment and victimisation.

Summary of the OfS consultation

Overall, we found there was a lack of clarity in the proposal but hope that other responses highlight these too and therefore feed into a better revised version. 

Obviously a final recommendation we definitely welcome and can support with is the proposal that all providers have a robust reporting procedure in place for students. Again, while we have reservations about everything being in one “single document”, the reporting procedure should not just be for harassment or sexual misconduct and should extend for staff to use as well. With more than 80 universities and more than half a dozen colleges across the UK working with us and using Report + Support, we and they can attest that doing so is enabling them to better understand the issues their students and staff are experiencing and tackling said issues.

And while the OfS consultation only applies to higher education providers in England, we hope many of the proposals made will be adopted by other providers in the UK. If you want to see how our Report + Support system is enhancing student experiences, read more here or contact us and one of our dedicated team members will be happy to chat.

How can we help you?

Reach out to our dedicated team who will be happy to answer any questions you may have.

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