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Universities should share investigation outcomes with harassment victims

Posted on 15 August 2022

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People who raise complaints with universities concerning harassment are often left in the dark about the investigation and outcome. This may be about to change as a result of new guidance issued by Universities UK (UUK).

In its 2019 inquiry into racial harassment in higher education, the Equality and Human Rights Commission (EHRC) identified sharing data in harassment cases as a key challenge for universities. On 25 July 2022, guidance was released by UUK, working with Coventry University, in response to this issue (the Guidance). The non-binding Guidance seeks "to empower universities to make informed, pragmatic and considered decisions as to whether to share personal data". It encourages institutions to diverge from blanket refusals to share personal data and instead reach decisions to share data on a case-by-case basis.

The Guidance acknowledges that coming forward to report an incident of harassment can be a difficult step. It notes that receiving information on the decision "can help deliver effective redress, remedy the harm caused and increase the student’s feeling of safety at the university".

What commonly happens when someone raises a harassment complaint with a university?

When a complaint is raised and an investigation is launched, it is very common for the university to refuse to share information about the investigation with the complainant. Frequently, universities will even refuse to share the factual outcome, despite the complaint precipitating the investigation.

This approach runs the risk of the complainant suffering even if their harasser is removed from the university. They may not know the harasser has been removed, experiencing undue stress and anxiety at the prospect they may see them on campus, when in reality, the risk of contact is minimal. More broadly, the complainant may feel a lack of support and closure if they are not informed of the outcome to an investigation.

Equally, when complaint outcomes are kept confidential, victims can be deterred from making complaints, as they perceive the process to lack transparency. Not knowing whether action has been taken against the harasser can also cause a victim to fear for their own safety, or the safety of those around them.

The approach adopted by universities is also out of step with other sectors, where it has long been best practice that complainants should know the factual conclusions of their complaint. This is regardless of whether or not they are specifically informed about the actions an employer has taken against their employee.

A better solution for resolving university harassment complaints

The Guidance is split into two parts, a strategic guide and a practical guide. It attempts to dissuade universities from taking an overly cautious approach when deciding what information can be shared and with whom.

It suggests that data protection concerns should not lead universities to adopt a blanket policy against sharing outcomes and sanctions. Instead, universities should assess each individual case on its own merits, balancing the harasser's data protection rights against the complainant's rights more generally. Universities are therefore being asked to share information in cases where they believe it is reasonable and appropriate in the circumstances.

The strategic guide encourages universities to share more information on outcomes and sanctions with reporting parties where it is appropriate and reasonable to do so. It aims to increase awareness of the benefits of sharing more information and to support conversations between the people working on complaints, the staff supporting students and data protection officers.

The practical guide offers specific practical recommendations for reviewing decisions about sharing personal data in relation to harassment cases. It also provides a framework that universities can use to support their decision-making processes, taking into account legal, regulatory, policy and wellbeing reasons for sharing data. The guide also gives examples of situations to illustrate when it could be appropriate and reasonable to share information on the outcomes and sanctions in harassment cases.

A call for universities to update their complaints handling

The Guidance should be a prompt to universities to review their relevant policies and reconsider their approach to complaints. Whilst the Guidance is non-binding, universities tend to take to take careful note of guidance issued by UUK. It is also likely that the Information Commissioner's Office (the regulator for data protection laws) will consider the Guidance and its own Data Sharing Code when determining whether a university has processed a complainant's data fairly and lawfully. The Guidance also forms part of a suite of new publications from UUK aimed at changing the way the higher education sector deals with complaints, including new guidance into sexual misconduct issued earlier in 2022.

If you have any queries or would like to speak to a member of our Education team, please contact Robert Lewis (robert.lewis@mishcon.com, +44 20 3321 7135).

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