Sexual harassment and universities’ legal obligations – the government’s new taskforce

September 23rd, 2015

Many of you will have heard about the government’s recent decision to set up a taskforce to tackle violence against women on campus. (See the government press release here.) This move is timeous or long overdue (depending on your viewpoint) in the light of the accumulating momentum of campaigns by various individuals and organisations to highlight the high incidence of sexual violence/harassment on campus.

The ‘turning of the tide’ (so to speak) came with the publication of the results of the NUS Survey ‘Hidden Marks’ in 2010 which found that a shocking 1 in 7 female students was a victim of sexual assault or violence.  Since then increasing publicity has been given to the issue, in particular by the End Violence Against Women campaign who in February of this year published a government briefing and detailed legal advice from Louise Whitfield and Holly Dustin as to university’s legal obligations under the Human Rights Act 1998 (“HRA”) and the public sector equality duty (“PSED”) in s 149 of the Equality Act 2010 (“EA 2010”). Significant press interest in the issue was perhaps brought to a head in the summer by a Guardian investigation.

On 6 September the government responded with its decision to set up a taskforce, whose brief is to:

  • develop a code of practice for institutions to support cultural change
  • explore how a kitemark scheme could be developed and awarded to successful institutions
  • explore how better to engage with Crime Prevention Officers
  • ensure best use of the existing complaints mechanisms such as the Equality and Human Rights Commission (EHRC) and, for students, the Office of the Independent Adjudicator
  • encourage institutions to ensure that the right links are in place with existing local activity, including through the Home Office Violence Against Women and Girls Strategy

This is welcome news, both for those affected by sexual violence on campus, and for universities. Until now, the only specific guidance to universities on dealing with cases of sexual violence had been the 1994 report by Graham Zellick to the Committee of Vice-Chancellors and Principals (not available on the web). This report, which followed what was widely perceived as mishandling of a rape allegation by a university (the details of which are shrouded in the mists of internet time), recommended that universities should normally leave the investigation of sexual violence to the police, other than in exceptional circumstances.

A judicial review earlier this year in which I represented Oxford University (see here for details and contemporaneous press reports) raised the question of the compatibility of Zellick’s recommendations with modern discrimination law, in particular with the obligations that universities may owe under the EA 2010 to protect students from harassment by ‘third parties’ (such as other students) and to deal appropriately with complaints of harassment so as not themselves to create, or contribute to the creation, of an environment that is ‘intimidating, hostile, degrading, humiliating or offensive’ (compare, in the employment sphere, Norouzi v Sheffield City Council [2011] IRLR 897).

It will be interesting to see whether the taskforce tackles the Zellick Report ‘head on’. Whether or not it does, however, it seems likely that the taskforce’s Report will supercede Zellick and provide welcome guidance to Universities on handling these difficult issues.

In the meantime, this year’s hapless freshers happily have more immediate support in the form of Lady Gaga’s latest release.

Holly Stout

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