British universities are public bodies with a legal duty to ensure that students can access education free from gender-based violence. But too often the way universities handle complaints of sexual misconduct is unlawful and discriminatory.
Legal obligations from universities to students may arise under:
- Common law – a breach of which would give rise to a claim in negligence
- Health and Safety law
- Equality Act (2010)
- Human Rights Act (1998), which protects various competing rights, and
- Data protection and confidentiality law
If you think your university mishandled your complaint of sexual misconduct, it is important that you seek prompt legal advice.
The Equality Act 2010
Under the Equality Act, universities owe a public sector equality duty, which requires them to have due regard to the need to:
- Eliminate discrimination;
- Advance equality of opportunity; and
- Foster good relations between people from different demographic groups.
This means that their policies and procedures, including those governing the handling of sexual misconduct complaints, should not have a discriminatory effect.
Universities are also directly liable for discrimination by their staff. This covers not only direct staff misconduct but for discrimination as they implement their complaints procedures.
We have pioneered the use of the Equality Act in bringing cases for clients whose universities mishandled their complaints of sexual harassment and misconduct. We have also reached successful settlements using the Human Rights Act.
Problems we often encounter at UK universities
Funneling complaints through a disciplinary process
British students don’t have the advantage of navigating a single regulatory system for dealing with complaints of sexual misconduct (like the United States does with Title IX).
Many universities and colleges funnel students’ complaints through discipline systems that provide major advantages to those accused of abuse or harassment compared to the complainants.
For example, complainants are most often not treated as a ‘party’ to the investigation and resolution of the complaint. That is handled as a dispute between the university, enforcing its rules, and the accused. The complainants are often not shown evidence, not allowed to question the accused, not even told the outcome. They are treated like unimportant observers, not key players. That is unjust.
If universities are not providing a complaints process which complainants feel safe using, they are not working towards the elimination of discrimination and fostering of good relations. We contend this breaches the Equality Act.
Over-use of confidentiality agreements (NDAs)
In many university disciplinary cases, our clients have been told they are not allowed to even discuss their own experience of harassment or assault, as if this has magically become the property of the university, just because our clients made a complaint. Complainants have been told this would amount to bullying the accused and even cause the complainants to be disciplined.
This happens even in cases where a charge of harassment has been found proven, but the university has refused to impose any real sanction and refused to announce the finding in any identifiable way.
This can mean a known harasser is left in post. This too does not comply with the public sector equality duty, and universities may have to pay damages to complainants as a result.
Dealing fairly with sexual misconduct complaints
We’ve represented numerous students who have experienced sexual harassment or sexual violence, and subsequent discrimination from their university. If you fear you have been unfairly treated, don’t hesitate to get in touch.
- Fair procedures aren’t as easy to run as OfS thinks (Wonkhe)
Georgina Calvert-Lee considers how UK universities might ensure that their disciplinary procedures are demonstrably fair to victims of harassment and sexual misconduct.
- Warwick Joint Claims – the “rape chat”
Our clients were female undergraduate students at Warwick University targeted by a male “rape chat”. We brought a claim against the University on the grounds that its handling of their complaint was discriminatory on the basis of sex.
- McAllister Olivairus and The 1752 Group launch new guidelines for sexual misconduct in higher education
Together with The 1752 Group we’ve created new guidelines to help higher education institutions improve their procedures for handling staff sexual misconduct complaints.