On 31 July 2024, the Office for Students (the “OfS”) published a new ongoing condition of registration (the “New Condition”) for higher education providers (“HEPs”), aimed at protecting students from harassment and sexual misconduct. The New Condition will apply from 1 August 2025, except for a ban on non-disclosure agreements covering allegations of harassment and / or sexual misconduct, which will instead come into force on 1 September 2024.

The New Condition will require HEPs to publish and comply with comprehensive provisions in respect of, among other things:

  • The protections afforded to students from harassment and / or sexual misconduct.
  • The ways in which students, staff and other persons are able to report behaviour that may amount to harassment and / or sexual misconduct.
  • The support that will be provided to students in response to incidents of harassment and / or sexual misconduct.
  • How the HEP ensures that investigations undertaken and decisions made in respect of such incidents are credible, fair and reflect established principles of natural justice.

HEPs will also need to provide training for staff and students to improve understanding of behaviour that may constitute harassment and / or sexual misconduct.

The OfS stopped short of banning intimate personal relationships between students and staff in the New Condition, despite previous suggestions that it might. The New Condition instead requires that HEPs publish and comply with one or more steps which could make a “significant and credible difference in protecting students from any actual or potential conflict of interest and / or abuse of power”. The OfS states that a ban on intimate personal relationships between staff and students is deemed to be such a step.

Whilst many HEPs have for some time now voluntarily provided consent and bystander intervention courses in an effort to address these issues, this announcement from the OfS now makes it a regulatory requirement to address harassment and sexual misconduct in higher education settings. This means that HEPs will have to meet these additional requirements to be able to, among other things, award degrees or recruit students accessing loans through the Student Loans Company.

Interestingly, a ban on non-disclosure agreements in certain circumstances and a range of other duties on HEPs – which had been due to come into effect from 1 August 2024 under the Higher Education (Freedom of Speech) Act 2023 – were halted by the new government, as Bates Wells reported in a recent update.

How Bates Wells can help

HEPs now have just under a year until the New Condition applies. In advance of 1 August 2025, HEPs will be required to do substantial work to comply with the New Condition, including drafting policies, ensuring they have capacity to comply with such policies and providing training to staff and students.

With experts in public and regulatory law, as well as education and safeguarding, Bates Wells are able to assist HEPs working to comply with the New Condition.

For further advice and support please contact either Natasha Davies, Matthew Smith or Jean Tsang.

The material in this update is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.