Staff sexual misconduct, the ‘duty of care’, and safeguarding: what should higher education institutions be doing?

Addressing staff-student sexual misconduct is not only about protecting and supporting particular students who may disclose or report this, but also about protecting other students and staff who have contact with the same member of staff. Evidence from the UK and the US (Bull and Rye, 2018; Cantalupo and Kidder, 2017) suggests that many perpetrators of staff sexual misconduct are serial (repeat) harassers targeting multiple students or staff members, either simultaneously or in subsequent years, and therefore the safeguarding risk to other students and staff needs to be addressed.

Addressing this safeguarding risk is difficult because the legal framework for safeguarding students in UK HE only requires institutions to apply safeguarding law to ‘adults at risk’, but there still exists a ‘duty of care’ towards all students. The Universities UK August 2019 report ‘Tackling Online Harassment and Promoting Online Welfare’ helpfully clarifies some of this grey area:

Although there is no legislation at present that sets out a distinct and formal statutory duty on universities to safeguard their students (given that many students are adults), the legal framework created by the legislation and the underlying general duty of care created towards staff and students at common law do require universities to be mindful of the risks of breaching this duty (page 27).

This report argues that this duty of care arises out of various pieces of legislation: contract law, a duty of care at common law, and the Equality Act 2010. By contrast, the Care Act 2014, which has more clearly codified safeguarding responsibilities for institutions, only applies to ‘adults at risk’ or ‘vulnerable adults’, and those under 18. However, there does not appear to be a shared understanding across the sector of when or whether students count as ‘adults at risk’, nor indeed whether a student might become an ‘adult at risk’ as a result of experiencing staff sexual misconduct or other harms within the HEI. A final problem with safeguarding and the ‘duty of care’ is that it has not been tested in the courts (UUK, p. 28). As a result, it is difficult to outline with certainty precisely what will and will not be included in it. However, there are two key ways in which the UUK report suggests this duty is likely to be applied in the courts: the foreseeability of the injury, and the proximity of the relationship between the university and its affected student(s) (UUK, 2019, p.28). In the case of staff sexual misconduct, both of these tests will often be met. If the staff member perpetrating the misconduct has met the student within their roles as staff and student at the HEI, then it seems likely that this would meet the ‘proximity of the relationship’ test. If previous disclosures, third party reports, or complaints have been made to the HEI, then the injury is foreseeable (assuming that these have been recorded).

A final barrier is the lack of institutional structures for dealing with this issue. As legal expert Kathleen Heycock has noted, the disparate ownership of safeguarding and student welfare within an HEI often impedes progress. She suggests that safeguarding provision within an institution should cover ‘how your organisation as a whole addresses issues such as low level concerns, early help, power dynamics, sharing information, having and following appropriate procedures; and organisational links with other duties’. Judging from our research and ongoing discussions with the sector, this provision does not appear to be in place in many institutions.

So what should institutions be doing to address the safeguarding risks associated with staff sexual misconduct?

With the above discussion in mind, including the developing state of the conversation around what HEI’s safeguarding responsibilities and duty of care to students are, we have set out below what we think are appropriate ways of addressing safeguarding in relation to staff sexual misconduct, linking this to existing policies where possible. 

1. Risk assessments

Immediately upon receiving a report of staff sexual misconduct, two risk assessments are needed (or one risk assessment dealing with two populations). The first is to assess the risk of further harm or retaliation against the student(s) or staff member(s) who has made the report. The second is to assess whether other students and staff, especially those in working/departmental relationships with the respondent to the complaint, could also be at risk. Durham University’s ‘Procedure for managing disclosures or reports involving allegations of staff sexual violence and misconduct’ includes provision for such actions:

5.2.3.The LSVMO [Lead Sexual Violence and Misconduct Officer] and Director of HR, or their deputies […] will undertake a risk assessment, seeking specialist advice where required, in order to determine if any precautionary measures, up to and including paid suspension, are required pending an investigation under the Disciplinary Regulations or any other appropriate University process (page 6).

This action is in line with the one of the recommendations made by Professor Nicole Westmarland in her independent review for the University of Sussex:

6.3.1 Recommendation 5 is that all risk assessments involving violence, abuse, harassment or other issue linked to power, gender, and any of the other protected characteristics under the Equalities Act should be documented and include input from a) an external expert b) a representative from another department – with a specialism in the area of the complaint if possible and c) representation from the person making the complaint – either the complainant themselves or a person supporting them. Information gathering should be an active not passive part of the process (page 12).

In addition, Professor Westmarland noted that health and safety protocols may also require such a risk assessment to take place. More generally, health and safety frameworks within the institution should be drawn on (and if necessary modified or supplemented) when disclosures of staff sexual misconduct are received, including where there may be consensual relationships involving an imbalance of power as part of the dynamic of the working relationship.

Finally, a risk assessment is also be required if, following the end of an investigation, a complaint against a member of staff is fully or partially upheld but the staff member remains in post. Provisions required may include ongoing support for complainants, no-contact orders to ensure the safety of complainant(s), and other strategies to ensure that the complainant is not further disadvantaged through having brought forward a complaint and is able to remain within their degree course if they wish to.

2. Investigating disclosures or third party reports in the absence of a formal complaint

This is a crucial issue for addressing staff sexual misconduct because, as a large body of research on sexual violence shows, the majority of people do not report their experiences, and there are particular risks to reporting staff members within one’s own institution (Bull and Rye, 2018; National Union of Students, 2018). As a result, the situation can exist where many people are aware of sexual misconduct occurring, but no formal report has been received. Institutions must address this problem in policies. The 1752 Group have published a briefing note together with our legal partner McAllister Olivarius on this topic. In addition, in our complaints process guidance we have advised that third party (bystander) reports should have the potential to trigger an investigation. This is important because, as noted above, institutions’ ‘duty of care’ towards students (and staff) is likely to be tested in the courts in relation to whether the injury was foreseeable.

In fact, both University College London and Durham University already include the provision for proactive investigations within their policies. University College London’s Duty of Care Guidance makes provision for UCL to proactively investigate without receiving a formal report. The relevant passage for action to be taken by higher education institutions [HEIs] is in bold:

Where a report is received by UCL through the Report and Support Tool, UCL will ordinarily only carry out an investigation or make a report of the complaint to an external third party with your consent. However, there are certain circumstances when UCL may need to investigate or make an external report even if you do not consent. Details of the most likely circumstances are set out below. This list is not intended to be exhaustive and the actions taken by UCL will depend on the specific circumstances of each case. […] 

An allegation about behaviour by a staff member or student towards another staff member or student over the age of 18. UCL may need to do the following:  

1.Report the matter to the police including if a crime is in progress, has occurred or may occur, or life is at risk.

2.Refer the matter to the police on a “no names” basis or on a case by case basis on a named basis, including if there if there is a risk to safety or well-being of the complainant. On a case by case basis, UCL may report the name of the subject of the complaint to the police for example, where an allegation of serious sexual assault has been made.

3.Investigate the matter further in accordance with its internal policies. In deciding whether to investigate in such circumstances, UCL will consider, for example, the seriousness of the incident or where multiple allegations have been made against an individual.

Similarly, Durham University’s ‘Procedure for managing disclosures or reports involving allegations of staff sexual violence and misconduct’ states that:

5.1.12. There may be certain circumstances where the University is required to take appropriate action to prevent potential harm to individuals or the University, based on a risk assessment, which may include acting on information despite or without knowledge of the wishes of the individual(s).

5.1.13. The University recognises that on occasion, information gained may fall short of a disclosure. However, if a pattern of behaviour that may demonstrate cause for concern is identified, an investigation may proceed according to this procedure.

There is a big conversation to be had around these policies. While we strongly welcome HEIs taking a proactive approach to investigating staff sexual misconduct, with or without a formal complaint, we also need to be wary of moving towards a system of ‘mandatory reporting’. In the US, under the Title IX federal law framework for addressing sexual violence on campus, ‘mandatory reporting’ requires university employees who receive disclosures of sexual violence involving students to report these to the Title IX coordinator, whether or not the student has agreed to this. Mandatory reporting has been heavily criticised for deterring students from disclosing to staff (Flaherty, 2015) and a survey of 783 students at a US public university suggests that it may dissuade around some students, particularly those who have previously experienced sexual assault, from doing so (Newins et al, 2018).

In line with expertise from sexual violence organisations that suggests that those who have experienced sexual violence should always retain control and choice over the process (Bull, Bullough and Page, 2019), and learning from recent research and policy developments in the US, it is clear that mandatory reporting is not a survivor-centred route to take. Furthermore, the name or identifying details of a disclosing student should never be shared more widely without that student’s permission. The route forward is to maintain a survivor-centred approach where those who wish to remain anonymous can do so, but where the HEI retains the right to conduct investigations and take other proactive steps as they see fit.

Such steps could include implementing awareness-raising sessions for staff and students; carrying out initiatives to build support and community such as mentoring programmes; and/or commencing a proactive investigation whereby students and staff within the department/school/research group are asked directly to provide information on sexual misconduct that they have witnessed or experienced to an independent investigator; this is what UCL call ‘environmental investigations’. In addition, the student(s) or staff member(s) who have disclosed should be signposted to further support, and they should also be offered the option of informally discussing options for taking forward a report or other informal actions (see below). With appropriate support, students and staff members may choose in time to make a formal report. It should be seen as in the interests of the institution to receive such reports (without pressuring the student), as this may help to protect other students and staff, as well as the reporting party.

There are many further issues to consider in relation to HEIs’ responsibilities towards upholding their duty of care and safeguarding responsibilities to students and staff. For example, the safeguarding risk should also be taken into consideration in decisions around the sanctions made against the staff member if the complaint is upheld (if they remain in post). In addition, we would like to see institutions considering how to deal with alumni reports about members of staff who are still in post; how to reduce the barriers to reporting (as discussed in this blog post) and the perennial issue of ‘pass the perpetrator’ where staff members can move between institutions with impunity by resigning before the end of an investigation.

**

Thanks to Georgina Calvert-Lee (McAllister Olivarius), Kathleen Heycock (Farrers) and Professor Andy Phippen (University of Plymouth) for discussions that have fed into this blog post.

Note that this blog does not constitute legal advice 

Dr Anna Bull, 12 January 2020

Bull, A., Rye, R., 2018. Silencing students: institutional responses to staff sexual misconduct in higher education. The 1752 Group/University of Portsmouth. https://1752group.files.wordpress.com/2018/09/silencing-students_the-1752-group.pdf [accessed 11.1.2019]

Bull, A., Page, Tiffany, Bullough, J., 2019. What would a survivor-centred higher education sector look like?, in: Gamsu, S. (Ed.), A New Vision for Further and Higher Education. Centre for Labour and Social Studies, London, pp. 73–82. http://classonline.org.uk/docs/A_New_Vision_For_Further_and_Higher_Education_220519_1647_forwebv1.pdf [accessed 29.5.2019]

Cantalupo, N.C., Kidder, W.C., 2017. A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty (SSRN Scholarly Paper No. ID 2971447). Social Science Research Network, Rochester, NY.

Flaherty, C., 2015, 4 February. Faculty members object to new policies making all professors mandatory reporters of sexual assault. Inside Higher Ed. https://www.insidehighered.com/news/2015/02/04/faculty-members-object-new-policies-making-all-professors-mandatory-reporters-sexual [accessed 9.9.2019]

Newins, A.R., Bernstein, E., Peterson, R., Waldron, J.C., White, S.W., 2018. Title IX Mandated Reporting: The Views of University Employees and Students. Behav Sci (Basel) 8. https://doi.org/10.3390/bs8110106

National Union of Students, 2018. ‘Power in the academy: staff sexual misconduct in UK higher education’ https://www.nusconnect.org.uk/resources/nus-staff-student-sexual-misconduct-report [accessed 4.19.18].

Universities UK, 2019. Tackling Online Harassment and Promoting Online Welfare  https://www.universitiesuk.ac.uk/policy-and-analysis/reports/Documents/2019/tackling-online-harassment.pdf [accessed 10.8.19].