(A Higher Education Institution Perspective)
In April 2022, Lady Margaret Hall College in Oxford agreed to pay damages to a student who reported being raped by another student. The matter was referred to the police, but the alleged perpetrator was not charged. The damages were awarded by the college after the complainant alleged negligence and discrimination in its handling of the matter when she came forward. For its part, Lady Margaret Hall did not admit liability and would not comment on the individual case, though it did acknowledge the need for improvement in handling complaints of a similar nature in the future:
“[there] is scope for improvement in our non-academic disciplinary procedures, which includes how the college deals with allegations of sexual assault. Such cases highlight that some universities and other educational establishments need to review how they deal with serious complaints, including sexual assault, in a timely, effective, and sensitive manner.”
In this article we look at how universities and higher education institutions (HEI) handle disputes and appeals, especially in cases of alleged sexual offence. If you are involved in an investigation at university (whether following the universities internal process, or if it is being looked at by police and law enforcement), it is advised to seek legal advice as soon as possible. We have solicitors that specialise in assisting individuals facing accusations and investigations, as well as expertise in helping universities with their dispute process. You can read more about our services on our university disciplinary page here.
Does a University have a Duty of Care in Sexual Offence Cases?
Universities have a duty under common law: “to deliver educational and pastoral services to the standard of the ordinarily competent institution, and, in carrying out services and functions, to act reasonably to protect the health, safety and welfare of its students.” While this may seem clear, the extent to which it is fair and reasonable to impose this duty on universities is hotly debated, especially when considered alongside the duty imposed on other similar institutions and settings.
In addition to the common law duty of care requirement, universities also have legal obligations under:
- the Health and Safety at Work Act (HASWA) – to take all reasonably practicable steps to protect the health and safety of staff and students;
- the Equality Act 2010 – to prevent discrimination, harassment or victimisation occurring on the grounds of a person having a protected characteristic;
- Consumer Rights Act 2015 – to adhere to the terms of any student contract.
When it comes to preventing and taking action concerning serious offences such as sexual assault and rape, universities must balance their common law duty towards students, their ethical obligations, and the reputational impact of their approach.
By implementing robust risk management, policies, procedures, systems, and training to prevent and handle such complaints, universities can mitigate the potential for serious incidents and, if they occur, appropriately deal with them.
Should Allegations of a Sexual Offence be Dealt with Internally?
Whether serious complaints should be handled internally by universities has been the subject of much debate in recent decades. Regardless of the approach taken, if a university receives a complaint of rape or sexual assault involving a student or staff member, it is important to take the matter extremely seriously.
The old advice given to universities in the 1994 Zellick report, which was written to guide higher education institutions (HEI) when reporting and responding to sexual assault and rape, was that:
- “Allegations of rape and other sexual assaults … are examples of cases that must be investigated by the police and considered by the prosecuting authorities.” And;
- “Internal action for rape and sexual assault is out of the question, regardless of whether or not the victim has any intention of reporting to the police or the preference for either party of an internal investigation.”
The Zellick report is now widely criticised for being out of date. The National Union of Students (NUS) has stated:
“There is a strong case to be made that the Zellick report is out of date and needs to be revised in light of our increased understanding of sexual harassment and sexual violence and in order to take into account new pieces of legislation in force. Most notably, the Equality Act 2010 places a number of requirements on universities.”
The risk of not taking internal action is that the complainant may not receive the support they need in the intervening period between reporting the incident and the conclusion of the police investigation (if there is to be one). Furthermore, the university may be considered negligent if it fails to take appropriate action to protect the safety of others (such as suspending or placing restrictions on the alleged perpetrator). Although a person is innocent until proven guilty, there may be situations where the HEI is left with no real option but to remove the alleged perpetrator from campus so as to mitigate the risk of internal complaints and reputational damage.
Office of the Independent Adjudicator
If an HEI decides not to take action concerning a serious non-academic matter such as a complaint of sexual assault, rape, common assault, or theft, or the affected student believes the action taken was inappropriate or insufficient, they may decide to make a formal internal complaint. If this does not result in a satisfactory outcome, the complainant can appeal.
If the university’s appeal process is not successful in reaching a mutually satisfactory outcome, the matter may then be referred to the Office of the Independent Adjudicator (the OIA) for Higher Education. The OIA is an independent body responsible for reviewing student complaints about higher education providers in England and Wales.
If a matter has been referred to the OIA, it will be incumbent on the HEI to instruct a solicitor specialising in educational disputes who understands the OIA process. They will review the legal basis for the appeal and merits, so as to formulate a response showing that the HEI did as much as could reasonably be expected to prevent the incident complained of and/or deal with it appropriately.
Much has changed in society over the last ten years (such as the #MeToo movement), resulting in a general increase in willingness on the part of those affected by sexual assault to come forward with restored confidence that their complaint will be taken seriously. While universities can only do so much to prevent incidents of this nature from occurring at all, it is incumbent on them to take all reasonable measures to manage risks, to be seen to take all complaints seriously, to provide proper support, and take appropriate (proportionate and fair) action.
If your university or Higher Education Institution has received a complaint or appeal relating to a serious allegation involving staff or students, our Education Law solicitors can help. You can contact us through our contact page here. Alternatively you can phone 0333 240 7373, or email us at email@example.com.