11-minute read

Dermot Feenan

LLB MA LLM Barrister-at-Law FRSA

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This blog was amended 9 May 2017

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Introduction

Increasing attention is being brought to bear on the problem of harassment within universities. A Universities UK report acknowledged the unacceptable incidence of harassment at universities. An increasing number of surveys reveal harassment in universities across a wider range of identities, including race and sexual orientation.

Yet, it remains difficult for victims to challenge harassment; and not only in universities – as confirmed in a recent TUC report. The Universities UK report Changing the Culture also noted that university responses are not as comprehensive, systematic and joined-up as they could be. An investigation by The Guardian found that universities’ use of non-disclosure agreements in sexual harassment cases allows alleged perpetrators to move to other institutions where they could offend again.

This article examines harassment in universities in England and Wales, examining the nature and types of harassment, and their legal remedies. The article reviews the typical effects of harassment and the challenges facing victims. I then share personal experience of submitting a complaint alleging harassment in a previous role, before setting out some recommendations for universities to better address harassment.

Nature and types of harassment

Whilst harassment is typically understood to mean ‘sexual harassment’, harassment now covers a much wider range of characteristics.

Harassment & protected characteristics

Section 26 of the Equality Act 2010 provides that a person harasses another person if he (or she) engages in unwanted conduct related to a relevant ‘protected characteristic’, and the conduct has the purpose or effect of either violating that other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The ‘protected characteristics’ are: age; disability; gender reassignment; race; religion or belief; sex; sexual orientation. (The Act is the modern version of discrimination legislation – applying across the employment sphere and also in the provision of services and education, for example – that has existed in previous forms since at least the 1970s.)

In deciding whether conduct has the effect referred to above, each of the following must be taken into account: the perception of the person; the other circumstances of the case, and; whether it is reasonable for the conduct to have that effect.

Such harassment is recognized only within employment, with the only action being to claim harassment and seek a remedy before an employment tribunal. This incurs fees* and entails formal legal proceedings.

Sexual harassment

The Equality Act 2010 also provides that a person harasses another if he engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to above.

In addition, harassment occurs where a person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, the conduct has the purpose or effect referred to above, and because of the person’s rejection of or submission to the conduct, the perpetrator treats that person less favourably than he would treat that person if the latter had not rejected or submitted to the conduct.

Again, the forum for challenging such harassment is through an employment tribunal. There is no specific criminal offence of sexual harassment in English law. However, sexually harassing behaviour may be criminal under a range of legislation.

The Universities UK report Changing the Culture raised concerns about the persistence of sexual harassment in universities. The Office of the Independent Adjudicator, the independent body tasked with reviewing student complaints, reported in 2015 a ‘small but steady’ number of complaints about the handling of sexual harassment cases by universities.

Harassment & stalking

There is a separate offence of harassment under the Protection from Harassment Act 1997, which includes causing alarm or distress to another person. A person must have experienced at least two incidents by the same person or group of people for it to be harassment. Harassment is an offence, and can thus be prosecuted. But it can also be pursued through the civil courts. Stalking, a new offence introduced by the Protection of Freedoms Act 2012, includes ‘harassment’.

Hate crime

Harassment may also amount to hate crime. Any criminal offence can be a hate crime if it was carried out because of hostility or prejudice based on disability, race, religion, transgender identity or sexual orientation. A judge can impose a tougher sentence on an offender.

Illustrations of harassment

Harassment is widespread across the university sector. This section illustrates its existence across a number of categories other than sex – which has already been referred to above. It is noteworthy that harassment can involve one or more protected characteristics.

Race

A survey by the University and College Union in February 2016 reported that 72% of black and minority ethnic staff had been subject to bullying and harassment from senior managers. Sixty-nine per cent of respondents said they had faced harassment from colleagues, and 86% said they experienced culturally insensitive comments either often or sometimes.

A survey by Black British Academics of black and minority ethnic students and staff in higher education in 2014 found that 58% of respondents said that they had been discriminated against or disadvantaged because of their race or ethnicity.

Professor Kehinde Andrews, the UK’s first professor of black studies argues that “universities produce racism”. He adds: “Are universities producing knowledge that challenges racism? I would argue that they are not.”

A report by the Runnymede Trust in 2015 found that UK universities remained resistant to changes in “curriculum, culture and staffing, remaining for the most part ‘ivory towers’ − with the emphasis on ‘ivory’.”

The university sector relies heavily on non-British nationals for student and staff recruitment and collaborations. It is especially important therefore that universities should take racial harassment seriously, not least in the wake of increases in xenophobia and associated insecurity for non-British nationals in the wake of the UK-wide referendum in June 2016 to leave the EU.

Sexual orientation

A second protected characteristic which attracts high levels of harassment is sexual orientation. In February 2016, The Forum for Sexual Orientation and Gender Identity Equality in Post-School Education found that more than half of staff respondents had witnessed learners acting negatively towards people because of their sexual orientation (55%). Among students, 60% had witnessed a learner acting negatively towards people because of their sexual orientation at least once; one in ten respondents saw or heard this behaviour every day; and more than half of lesbian and gay (51%) and non-binary students (59%) had experienced homophobic or transphobic name-calling.

Illustrative effects & challenges

Harassment causes injury. This is recognized in law, by subjecting harassment variously to criminal or civil sanction. Under equality legislation the recognized injury lies either in violation of a person’s dignity or in the creation of an intimidating, hostile, degrading, humiliating or offensive working environment.

Numerous surveys show the debilitating effects of harassment in the workplace; though it is necessary to note the variation in types of harassment and corresponding severity of effects. The TUC and Everyday Sexism Project survey revealed that one fifth of those polled reported that they avoided certain work situations as a result. Fifteen per cent said it made them feel less confident at work.

Harassment can lead to ill-health. Nine per cent of respondents in the TUC survey reported that harassment had a negative impact on their mental health. Three per cent reported that there was a negative impact on their physical health.

Harassment adversely affects productivity. In the TUC survey, 5% said it had a negative impact on their performance at work.

Harassment also damages the reputation of a university, including its constituent departments, with potentially adverse effects on opportunities for student and staff recruitment, inter-personal and inter-institutional collaboration, and securing of research grants.

Harassment in universities often involves the use of power by a person in a position of organisational authority over another person. In the TUC survey, almost 20% of harassers had line-management or direct authority over the person subjected to harassment – a phenomenon exacerbated in the highly hierarchical university sector. The disequilibrium in power in such relationships can make holding the perpetrator to account extremely difficult. But there are a wider range of challenges.

Protecting reputation trumps all

Universities increasingly depend on fee income. They compete for students. Damage to market reputation hurts. Dr Alison Phipps, who has studied sexual harassment in 10-15 universities, said it was the same story every time: “The system comes into operation to protect itself”.

Lack of accountability

Often, harassment simply goes unchallenged. Repeated surveys and reports underline the failure of institutions to challenge harassment. Staff are rarely held to account.

Ann Olivarius, a lawyer specialising in harassment cases, says: “There are very few penalties for academics who sexually harass their students”.

Yet, those subject to harassment are generally agreed on the best course of action: hold the perpetrators to account. In the UCU survey, respondents were most likely (68%) to choose as their preferred outcome: ‘effective sanctions against perpetrators’.

Poor processes

Dr Tiffany Page, of the 1752 Group, a consultancy to deliver training on sexual harassment, says: “If women do make complaints, we have evidence that these are often dealt with poorly by institutions, putting complainants at risk”.

Policies alone are insufficient

Institutions often react defensively to claims by pointing to the existence of a policy. But policies themselves are insufficient. The Forum for Sexual Orientation and Gender Identity Equality in Post-School Education, for instance, found that less than half of staff respondents (42%) agreed that workplace policies to protect people from discrimination on the grounds of sexual orientation and/or gender identity were effective in preventing discrimination. 

Policies must be implemented effectively and be seen to be working. And, as Sara Ahmed, a professor at Goldsmith’s who resigned in protest at concerns about sexual harassment there, said in relation to diversity work – the institution can end up “doing the document rather than doing the doing”. Given the extremely low levels of confidence among staff and students subject to harassment, actions must speak here especially more loudly than words. A culture of policy-defensiveness can undermine equality and anti-discrimination more broadly.

Explanations based in neo-liberalism

Many trends within neo-liberalism appear to explain the persistence of harassment and the ineffectual response of contemporary universities to the problem.

Privatisation, casualisation, and increasing reliance on contract work create insecure working conditions that appear to make individuals more vulnerable to harassment. The commodification of higher education fetishise the monetary value of a degree over other normative values, such as dignity and respect. Consumerist ideology and narrowly conceived identity politics erode social justice concerns and solidarity across social categories. The increase in managerialism tends to disconnect institutional management from academic practices and accompanying responsibilities.

My own experience

My own experience, as Northern Irish, a lawyer and as someone committed to anti-discrimination and equality work, of complaining about harassment in a previous role, was sobering. It has made me acutely aware of the challenges that can face others, especially if unaware of their legal rights, and of the urgent need to introduce effective measures to combat harassment.

In my case, I lodged a complaint of bullying and harassment, with reference to race and gender, by management. Just over two weeks later, I was informed that my post would not be made available for renewal. In time, my contract came to an end and I was out of work. The employer asserted after the contract ended that it had made the decision not to renew several days before the complaint was lodged.

Under the employer’s grievance procedures, any such complaint must typically remain confidential. This means that a complainant is unable to disclose details to other colleagues. In my case, this felt incredibly isolating. 

The risks of such complaint in a small group can be significant. If other members of the group become aware that a complaint is made against management, they understandably may wish to decide where they are perceived to stand: with the complainant or with management.

Within months of the complaint being lodged a number of colleagues avoided contact. Emails that would formerly have been answered received no response. Invitations to meet to discuss research were met with silence. Proposals for collaboration led to stonewalling. I informed management of the isolation. Nothing was done. I found support, in part, through an independent employee assistance programme.

The manager against whom the complaint was made still exercised control over many resources necessary for performance of my contract. I was cut out of the departmental research seminars, which I had previously coordinated, initially denied funding to attend conferences with reference to a number of grounds not contained within published Faculty policy, and frozen out of research opportunities that would have enabled me to demonstrate performance of my contractual duties. A complaint was made against me, ironically citing bullying and failure to follow a reasonable management request: both of which allegations I refuted.

I persisted for over a year through my grievance proceedings, and, like other complainants of harassment, my health, confidence, and productivity were adversely affected. The employer tried to kill the grievance by contacting my union with a ‘settlement’ proposal. It was completely unacceptable. When I refused the offer and insisted that the employer take the complaint seriously and provide the support that I was owed in order to fulfil my contract, it tried to insist that research work that I was then doing abroad should be taken as holiday leave or as unpaid leave. This, too, required a response, aided by my union: that any attempt to withhold my pay would be unlawful and challenged as such. Almost 14 months after my initial complaint of bullying and harassment, it was still not possible to exhaust all internal procedures to seek to resolve the matter before my contract ended.

Notwithstanding the considerable challenges in that workplace, I soldiered on, bolstered by the support of my union, professional assistance, and the love and solidarity of friends and relatives.

I had joined the employer with enthusiasm and quickly gained the confidence of colleagues, introducing well-regarded new initiatives based on widely-accepted principles of public service and accountability: openness, transparency, fairness and merit. There were concerns about management self-interest. One colleague, who had been with the employer for years, told me of ‘behind-closed-door deals; ‘“you-scratch-my-back” sort-of-thing’.

My health, well-being and productivity improved when I finished in that role. 

Recommendations

A number of reports on harassment make a range of recommendations. The following are some key proposals:

• Senior leaders in universities should afford anti-harassment priority status and dedicate appropriate resources to tackling harassment.

• Universities should conduct regular impact assessments of their anti-harassment approaches.

• Universities should embed a zero-tolerance approach to harassment across all institutional activities.

• Universities should take meaningful steps to embed into human resources processes (such as contracts, training, inductions) measures to ensure staff understand harassment, and the importance of a zero-tolerance approach.

• Universities should ensure training of all staff – especially managers – in addressing harassment, their own and that of others, including through implicit bias training.

• Anti-harassment approaches need to be embedded within broader institutional strategies that respect and celebrate diversity.

• There should be effective sanctions against perpetrators of harassment.

• HEFCE should monitor universities’ policies on harassment, examine the implementation of those policies, and conduct surveys on the nature, scale and incidence of harassment.

• Fees for taking employment tribunal cases should be abolished.*

• The power of tribunals should be increased to make a wider range of recommendations against an employer.

My personal experience of submitting a complaint of harassment underlines the importance of obtaining union advice and, when appropriate, other professional help such as through an independent employee assistance programme; robustly challenging ongoing detriment; and, ultimately, knowing that one can, if necessary, vindicate one’s rights before a court.

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*On 27 July 2017, the United Kingdom Supreme Court ruled that these fees were unlawful; R (on the application of Unison) v Lord Chancellor [2017] UKSC 51.

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References

Black British Academics (2014). Race Equality Survey.

Forum for Sexual Orientation and Gender Identity Equality in Post-School Education (2016). Pride and Prejudice in Education.

HEFCE (2012). Equality & Diversity Scheme 2012-2014. 

Runnymede (2015). Aiming Higher: Race, Inequality and Diversity in the Academy. London.

TUC (in association with Everyday Sexism Project) (2016). Still Just a Bit of Banter? Sexual Harassment in the Workplace in 2016. London.

UCU (2016). The Experiences of Black and Minority Ethnic Staff in Further and Higher Education. London.

Universities UK Taskforce (2016). Changing the Culture. London.

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Acknowledgement

Thanks, as always, to Karen Bensusan for her love, support, and assistance.

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© Dermot Feenan 2017