Legal explainer: Sexual misconduct and workplace sexual harassment

What colleges need to know about changes in the law relating to sexual misconduct and workplace harassment

What colleges need to know about changes in the law relating to sexual misconduct and workplace harassment

21 Jan 2024, 5:00

There have been a couple of recent changes in law to which colleges will need to adapt. The first change comes as a result of a recent case about sexual misconduct between students. The second relates to a new law covering sexual harassment in the workplace.

These two changes are separate (one covers students and the other covers staff), but they do cover similar topics and colleges need to be ready for both.

Student sexual misconduct

There has been a recent case about the investigation into reports of sexual misconduct made by two students about a fellow student. The students studied at a higher education college, although the findings apply just as much to further education colleges.

The judgment concluded that the college was negligent in the conduct of its disciplinary process and in its treatment of the two reporting students in the course of that process, causing them psychiatric harm. As a result, the students were awarded damages. 

What does this mean for colleges?

This case does not create a new duty of care. It applies the ordinary principles of a duty of care, albeit for the first time in the context of an education institution’s disciplinary proceedings for sexual misconduct.

There is no duty of care to prevent harm generally (self-harm or harm by third parties). The duty relates to matters that are within an institution’s reasonable control or matters for which it assumes responsibility.

The lesson of this case is that, if a college mishandles the disciplinary process in cases of alleged sexual assault, it is reasonably foreseeable that it is likely to cause or exacerbate psychiatric harm that often follows such an assault. If a person is left exposed to harm that arises from making a report or because they are unsupported, that harm is likely to make a college vulnerable to a successful claim.

Although every case is very much determined by its specific facts, this is an important reminder for colleges to review their practices. Serious sexual-misconduct cases can have significant consequences for both reporting and responding students and, if badly handled by institutions, can result in liability for the college. Does your college have policies and procedures in place to deal with such a situation?

Sexual harassment in the workplace

In the context of employment law, the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force in October 2024. This means that all employers, including colleges, will be under a statutory duty to take reasonable steps to prevent sexual harassment in the workplace. If employers fail to take reasonable steps to prevent sexual harassment, then the Equality and Human Right Commission can take enforcement steps, plus any successful tribunal claim will be subject to a compensation uplift of up to 25 per cent.

What does this mean for colleges?

Colleges must understand what their obligations will be and put in place the correct policies and procedures to ensure that they can show they have taken such steps to prevent sexual harassment in the workplace. This includes providing specific, tailored training to line managers and senior staff who are responsible for ensuring compliance with those policies and procedures.

Clear and unequivocal statements as to a college’s ‘zero-tolerance’ policy and approach to harassment should also be set out, perhaps by way of clearly displayed signs or notices. Colleges might also wish to consider having a central register of all harassment complaints raised, so that they can keep track of any areas with particular issues or trends and so that they can ensure they are addressed quickly. However, that would need to be carefully executed considering data protection rules.

The cost of getting it wrong could be extensive, with no cap on compensation in discrimination claims, plus the potential 25 per cent uplift on that compensation when employers fail to take reasonable steps to prevent harassment.

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