REGULATING HIGHER EDUCATION: ALL CHANGE AGAIN
Recent developments have kept higher education in the headlines, focusing on freedom of speech and protecting students from alarming sexual harassment statistics. These issues also relate to staff management at universities, among many cities' biggest employers. The repeal of the Higher Education (Freedom of Speech Act) 2023 (HE Act) and the Office for Students (OfS) consultation outcome on harassment and sexual misconduct have brought these concerns back into the spotlight.
This article examines both developments and explores their implications for university staff management and HR practices.
Freedom of Speech
The UK’s Higher Education (Freedom of Speech Act) 2023 (HE Act) was a landmark move aimed at strengthening free speech protections in universities. A key provision was banning non-disclosure agreements (NDAs) in cases involving sexual harassment, bullying, and misconduct. This was intended to stop institutions from using NDAs to silence victims, encouraging transparency and accountability.
NDAs
NDAs are typically used by employers to safeguard confidential information and handle sensitive matters discreetly. In universities, they’ve often been employed to manage misconduct complaints while protecting the institution's reputation. However, NDAs have been criticised for suppressing victims' voices, leading to calls for reform.
The HE Act aimed to curb this practice, banning NDAs in misconduct cases to allow individuals to speak openly about their experiences without legal repercussions. This was seen as a step towards greater transparency and protection of individual rights.
Despite the Act’s passage, the newly elected Labour government has delayed its implementation, meaning universities and employers can continue using NDAs, including in harassment and bullying cases. This pause allows universities to manage disclosures with NDAs, potentially shielding their reputations and avoiding public exposure of internal issues. However, victims may still lack safe avenues to discuss their experiences, raising concerns about justice and transparency.
“The new condition requires institutions to develop clear policies, provide adequate support for affected individuals, and ensure proper staff training. The implementation timeline has been adjusted based on feedback, adopting a more flexible, phased approach to accommodate different institutional capacities.”
The Labour government’s decision reflects an ongoing debate in the UK on balancing institutional confidentiality with the need for transparency and individual rights. As the situation unfolds, it will be crucial to monitor how universities and other stakeholders navigate these challenges and whether further legislative action will address the concerns surrounding NDAs in such sensitive cases.
Sexual Harassment
The OfS recently published its consultation outcome on new regulations addressing harassment and sexual misconduct (HSM) in English higher education institutions. The consultation sought feedback on a proposed new condition of registration, requiring institutions to implement measures to prevent and respond to HSM incidents.
Summary of Consultation Responses and Decisions
The consultation received 261 responses, mainly from higher education providers, students, and sector bodies. While responses were generally positive toward new regulations, some key proposals were met with disagreement. Five of the seven proposals received majority support, but concerns were raised over regulatory overreach, additional burdens, and preserving institutional autonomy.
Overarching Themes
Regulatory Overreach and Burden: Some respondents felt the OfS was overstepping its mandate by addressing HSM, viewing it as a pastoral issue rather than an educational one. There were concerns about the added regulatory burden on institutions, which could detract from other educational priorities.
Institutional Autonomy: Many emphasised the importance of respecting institutional autonomy, expressing worries that the proposed regulations could overly prescribe institutional policies, limiting flexibility.
Support for Students and Staff: Broad support was given for policies requiring institutions to provide clear guidelines, adequate support for students, and comprehensive staff training for handling HSM incidents. A trauma-informed approach was especially advocated to ensure sensitive handling of cases.
Implementation and Timelines: The proposed three-month implementation timeline was criticised as too short. Respondents suggested extending it to 6-12 months to allow for proper planning, policy development, and resource allocation. There were also calls for a phased implementation approach to ease the transition.
Guidance and Best Practices: Respondents requested detailed guidance and examples of best practices to help institutions meet the new requirements. This was seen as vital, especially for smaller providers lacking the resources to develop comprehensive policies independently.
Final Decisions
The OfS has decided to move forward with implementing the new registration condition, known as “Condition E6,” to address HSM. This decision was based on the need to ensure student safety and address inconsistent progress across the sector in dealing with these issues. The new condition requires institutions to develop clear policies, provide adequate support for affected individuals, and ensure proper staff training. The implementation timeline has been adjusted based on feedback, adopting a more flexible, phased approach to accommodate different institutional capacities.
While acknowledging concerns about regulatory overreach, the OfS justified its decision by citing its duty under the Higher Education and Research Act 2017 to protect students and promote their welfare. The final implementation plan emphasises balancing institutional autonomy with the need to comply with new requirements.
Conclusion
These regulatory developments mean universities must review and update their policies to align with the evolving landscape. If you need assistance navigating these changes, feel free to reach out for support.