Welcome to the May 2022 edition of Higher Education Today, looking at current topics and questions facing higher education.

In each edition we feature content from key members of our Higher Education legal and regulatory team. If you would like further details about these individuals or information about the wider Higher Education team please see our Higher Education brochure.

We hope you find the newsletter interesting and helpful.

Virginia and Ashley,
Joint Department Heads for Higher Education

Higher Education and the UK Covid-19 Inquiry

The UK Covid-19 Inquiry has been established by the Government to examine the UK’s preparedness and response to the pandemic, and to learn lessons from it.  The Inquiry, which will have statutory powers to compel participation and the production of evidence, published its draft Terms of Reference on Thursday 10th March.  Following a consultation exercise which included discussions focussing specifically on post-16 education, the Chair of the Inquiry, Baroness Hallett, has written to the Prime Minister proposing changes to the Terms of Reference, some of which may impact on the Higher Education sector.

It is likely that the Inquiry will examine questions under three “modules”:

  • central, devolved and local public health decision-making (including lockdowns and impacts across a range of public services);
  • the response of the health and care sector (including the development of therapeutics and vaccines); and
  • the economic response to the pandemic (including the funding of public services).

Following the consultation, the Inquiry has proposed that the examination of issues relating to inequalities will be an overarching aim of the Inquiry.

As is to be expected, much of the Inquiry’s focus will be on the responses of central Government and the health and social care sectors.  However, it is clear from the Terms of Reference that wider impacts will be considered.  It was originally proposed that the Inquiry would examine, specifically, “restrictions on attendance at places of education”.  However, following the consultation, the Inquiry is seeking to broaden its scope to focus more closely on the impact on children and young people, including health and wellbeing.  The Inquiry has also proposed an increased focus on the role of expert, advisers, science and data in informing the Government’s response to the pandemic.

While the impact of the pandemic on university students has already been the subject of a Parliamentary report, the scale and powers of the Inquiry will be far more wide-ranging. It is likely that higher education institutions will be engaged with the Inquiry, and may be asked to participate, by providing data, or giving evidence in relation to a number of areas of activity:

  • the provision of services to students – as well as examining the impacts on the delivery of core academic activity, this may encompass accommodation and student welfare provision during lockdowns. This area of focus may include the steps taken by higher education institutions, and the support provided to them, to ensure continuity of services, and the differences in approach taken by different types of institution, or in different geographies. The impact of inequalities on students’ experiences and outcomes are also likely to be an area of focus;
  • the participation of universities and their staff in the provision of advice to Government; and
  • the role of universities in the development of vaccines and therapeutics.

We expect higher education institutions to have differing levels of involvement, depending on their engagement with the areas identified above; many may be asked to provide data and other information, and some may be specifically asked by the Inquiry to participate by giving evidence.  The Inquiry will have powers to compel the production of evidence, but there may be a discretion as to whether, and how, to participate (including whether to do so individually or collectively), and many higher education institutions will want to ensure that their stories, and those of their staff and students, are heard.

A key first step will be for any higher education institution anticipating that it will want to, or be asked to, participate will be to ensure that contemporaneous documents are identified, preserved, and accessible, and to begin to consider how – any by who – evidence can most effectively be given.

If you would like more information on this topic or to discuss public law matters more generally, please contact Virginia Cooper.

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Sexual harassment in the Higher Education workplace

Ashley Norman and Anne Palmer spoke at this month’s Universities Human Resources (UHR) conference about this highly charged topic which continues to resonate within the Higher Education sector and beyond. Over 270 delegates attended which is testament to the levels of interest. 

Last year’s University and College Union (UCU) report into sexual harassment highlights the scale of this problem, with “victims” claiming a dismissive approach from employers, which are sometimes anxious not to upset leading academics or jeopardise funding streams. The report found that women were nearly 2.5 times as likely to experience sexual harassment as men and those on insecure contracts, with disabilities, LGBTQ+, Black, Asian or minority ethnic were at greater risk.

The session generated some interesting comments and questions from delegates.  The use of policies around the disclosure of staff relationships was one area, with certain delegates noting that their policies needed updating. Another delegate asked about what an institution should do if an employee raises sexual harassment concerns in confidence without wanting it pursued – should the employer respect that confidentiality or in doing so, would it simply exacerbate a problem and increase risk?  We referred them to the case law which suggests that whilst confidential (or even anonymous) complaints need handling with particular care, they would need to be acted on in some way. 

Our session ended with a look at the various recent consultations which have taken place aimed at tackling sexual harassment: by the Equality and Human Rights Commission, Women and Equalities Select Committee and others, and noted that despite the Government’s stated commitment last July was that it intended to take action in certain key areas (including imposing a legal duty on employers to prevent sexual harassment), the Queen’s Speech was silent on new legislation in this area. So, for the time being, it will be for individual higher education institutions to manage workplace harassment within the current legal framework – through improved internal training and monitoring, and effective investigation.

If you would like more information on this topic, please contact Ashley Norman or Anne Palmer.

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Say hello to us

The Higher Education team will be attending several conferences in June.  If you are attending, do say hello to us on our exhibition stand or contact us in advance for a coffee and a chat:

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If you would like to discuss any of these topics in more detail, or to find out how we can help your organisation, please contact our Higher Education team.

You can subscribe to receive this newsletter directly in your inbox via subscriptions@bevanbrittan.com

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