- This blog was authored by Rose Stephenson, Director of Policy and Advocacy at HEPI.
- We are hosting four free events across the UK in conjunction with London Economics and the Nuffield Foundation in late February and early March. We have an impressive panel of sector experts, including a new speaker just added to the Belfast panel. All details are here – we hope you can join us.
Today is the 23 February 2024 – one year since the Office for Students (OfS) launched its consultation on ‘a new approach to regulating harassment and sexual misconduct in English higher education’.
The consultation closed on 4 May 2023 and the OfS was aiming to publish a summary of responses and their decision ‘later in 2023’. The timeline for the response is now and has been for a while ‘in the coming months’.
This delay is leaving universities in limbo – particularly when it comes to policies on staff-student relationships. In my previous role at the University of Bath, we discussed waiting for the outcome of this work as far back as 2022. While a small but increasing number of higher education providers have chosen to ban staff-student relationships, many are waiting on the outcome of the consultation to take their next steps.
The OfS outlines two options for managing staff-student relationships in the consultation document. These are:
Option A
The provider must take all reasonable steps to:
a. require any relevant staff member to disclose any personal relationship that the relevant staff member has with any student (including the nature of that personal relationship);
b. maintain a register of any such personal relationships that exist between a relevant staff member and a student (including the nature of any such personal relationships); and
c. in respect of such a personal relationship, manage and address any actual or potential conflict of interest and/or abuse of power.
Option B
The provider must take all reasonable steps to:
a. prohibit any relevant staff member from having a personal relationship with one or more students;
b. take appropriate steps, which would normally be dismissal of the relevant staff member, in circumstances where they refuse to end a personal relationship.
Option A is the OfS’s preferred option. In this option, staff members will need to disclose their relationship with any student and the institution will keep a register of these relationships.
Some crucial questions need to be asked about how a register like this will work in practice.
Firstly, at what point does that staff member need to disclose the relationship? The consultation document sets out the following:
We would expect a provider to take all reasonable steps to require a relevant personal relationship to be reported either before it begins or within a short time of it beginning: we consider that three weeks would be an appropriate period, but invite views on this in consultation responses. We propose treating a personal relationship as beginning at the point one or more of the following occurs: physical intimacy, including isolated or repeated sexual activity; romantic or emotional intimacy; or financial dependency.
This is a little confusing. It states that the relationship should be reported before it begins, or up to three weeks after it begins. Further, reaching emotional or romantic intimacy are quite ethereal points in a relationship – a clearer definition here would be helpful.
The most crucial argument is that none of this prevents a member of staff, in a position of power over a student, from flirting with, hitting on, or asking out a student. Given the inherent power imbalance between a staff member and a student, this act in itself can leave a student under pressure to respond in a way they believe will cause them the least detriment.
Further, in a situation where a staff member asks a student on a date, and the student says no, this is likely to go unrecorded on the register. What is the process here, if the student is concerned that the staff member they rejected is marking their dissertation, or writing their reference – when this interaction wasn’t registered, or required to be registered?
What happens if a staff member asks the student out more than once or is persistent in pursuing the student? There reaches a point where this crosses into harassment, but this can be seen as a grey area, and many students choose not to report harassment even when behaviour has clearly crossed a line. In the meantime, the student may change their behaviour, skip lectures or change modules to avoid being in such a situation. The register doesn’t provide for this.
There is a further question about the register. It is intended to exist to:
Reduce the impact of the power imbalance that will exist in many, if not most, personal relationships between relevant staff members and students, and reduce the likelihood of this being exploited to enable misconduct, including sexual misconduct.
This suggests that the OfS accepts that there is a risk of staff-student relationships being exploited for the purposes of misconduct or sexual misconduct. Therefore, the register could be seen as a register of risk, or potential risk. If there was no risk in these relationships, then there would be no need for a register. If institutions have these data on risk, what is their obligation to share them? Should staff references set out a lecturer’s teaching and research prowess, alongside the number of students they have dated in the last 5 years?
This may feel like an egregious breach of privacy, but if we accept that staff-student relationships carry inherent risk, and institutions are required to hold data on this risk, then careful thought needs to be given to if and how this is shared. (In a similar-but-different vein, Sunday Blake has written about sharing of information on risk in relation to sexual misconduct processes here.)
Whichever way this falls out, institutions are (still) waiting for regulatory guidance. We look forward to the consultation response being published.