Sexual Harassment
Sexual Harassment is unlawful under the Equality Act 2010. Sexual Harassment is unwanted conduct of a sexual nature (verbal, non-verbal or physical) which has the (i) purpose or (ii) effect of violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. It is not necessary for the person to object to the conduct for it to be unwanted. Harassment can occur even if this was not the intention.
In deciding whether conduct has the effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person, the following must be taken into account:
- the perception of the person subjected to the conduct;
- the other circumstances of the case;
- whether it is reasonable for the conduct to have that effect.
Sexual Harassment, under the Equality Act can be a one-off event and does not need to be directed at a person. It can be witnessed or overheard. An individual can experience sexual harassment from someone of the same or different sex, and sexual conduct that has been welcomed in the past can become unwanted.
Sexual harassment is a criminal offence under section 1 of the Protection from Harassment Act 1997, which states that the offence of harassment (which may include sexual harassment) is only committed if the person knows or ought to know that their course of conduct amounts to harassment of the other person. A person ought to know it amounts to harassment if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
Sexual Assault
Sexual assault is defined under Section 3 of the Sexual Offences Act 2003 as:
(1) A person (A) commits an offence if they intentionally touches another person (B), the touching is sexual, B does not consent to the touching, and A does not reasonably believe that B consents. Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
Harassment
Harassment is unlawful under the Equality Act 2010. Harassment is unwanted conduct related to a protected characteristic which has the (i) purpose or (ii) effect of violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. It is not necessary for the person to object to the conduct for it to be unwanted. Harassment can occur even if this was not the intention.
In deciding whether conduct has the effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person, the following must be taken into account:
- the perception of the person subjected to the conduct;
- the other circumstances of the case;
- whether it is reasonable for the conduct to have that effect.
Harassment, under the Equality Act can be a one-off event and does not need to be directed at a person. It can be witnessed or overheard. Conduct that has been tolerated in the past can become unwanted.
Harassment is a criminal offence under section 1 of the Protection from Harassment Act 1997, which states that the offence of harassment is only committed if the person knows or ought to know that their course of conduct amounts to harassment of the other person. A person ought to know it amounts to harassment if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
For the purpose of the Equality Act 2010, the protected characteristics are:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief (which includes philosophical belief and lack of belief)
- Sex
- Sexual orientation
Stalking
Stalking is a criminal offence under the Section 2A of the Protection from Harassment Act 1997. For the offence to be committed a person's course of conduct must amount to the offence of harassment (under Section 1 of the Act), the course of conduct involved must be ones associated with stalking, and the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.
The following are examples of conduct which, in particular circumstances, are ones associated with stalking:
(a)following a person, (b)contacting, or attempting to contact, a person by any means, (c)publishing any statement or other material—(i) relating or purporting to relate to a person, or (ii)purporting to originate from a person, (d)monitoring the use by a person of the internet, email or any other form of electronic communication, (e)loitering in any place (whether public or private), (f)interfering with any property in the possession of a person, (g)watching or spying on a person.
Victimisation
Victimisation is unlawful under the Equality Act 2010. It is where someone suffers a detriment i.e. is treated less favourably because they have done or may do a protected act. A protected act includes:
- bringing proceedings under the Equality Act;
- giving evidence or information in connection with proceedings under the Equality Act;
- doing any other thing for the purposes of or in connection with the Equality Act;
- making an allegation or complaint that a person has acted in breach of the Equality Act.
Protected acts will therefore include, and so protect individuals who make a report, allegation or complaint of Harassment or Sexual Harassment.
For the purpose of the Equality Act 2010, the protected characteristics are:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief (which includes philosophical belief and lack of belief)
- Sex
- Sexual orientation
Domestic Abuse
This is defined under Sections 1 to 3 of the Domestic Abuse Act 2021. Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if—A and B are each aged 16 or over and are “personally connected” (see definition below) to each other, the behaviour is abusive.
Behaviour is “abusive” if it consists of any of the following—(a) physical or sexual abuse (b) violent or threatening behaviour (c) controlling or coercive behaviour (d) economic abuse (see below) psychological, emotional or other abuse and it does not matter whether the behaviour consists of a single incident or a course of conduct.
“Economic abuse” in the above definition means any behaviour that has a substantial adverse effect on B’s ability to —(a) acquire, use or maintain money or other property, or (b) obtain goods or services
A’s behaviour may be behaviour “towards” B despite the fact that it consists of conduct directed at another person (for example, B’s child).
Two people are “personally connected” to each other if any of the following applies — (a) they are, or have been, married to each other (b) they are, or have been, civil partners of each other (c) they have agreed to marry one another (whether or not the agreement has been terminated) (d) they have entered into a civil partnership agreement (whether or not the agreement has been terminated) (e) they are, or have been, in an intimate personal relationship with each other (f) they each have, or there has been a time when they each have had, a parental relationship in relation to the same child (g) they are relatives.
Hate Crime
The law recognises five types of hate crime on the basis of:
- Race
- Religion
- Disability
- Sexual orientation
- Transgender identity
Any crime can be prosecuted as a hate crime if the offender has either:
- demonstrated hostility based on race, religion, disability, sexual orientation or transgender identity
Or
- been motivated by hostility based on race, religion, disability, sexual orientation or transgender identity
Someone can be a victim of more than one type of hate crime.
These crimes are covered by legislation (Crime and Disorder Act 1998 and section 66 of the Sentencing Act 2020) which allows prosecutors to apply for an uplift in sentence for those convicted of a hate crime.
The police and the CPS have agreed the following definition for identifying and flagging hate crimes:
"Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person's disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or transgender identity or perceived transgender identity."
There is no legal definition of hostility so we use the everyday understanding of the word which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.
Freedom of Speech
1. Higher Education (Freedom of Speech) Act 2023 (the HE(FoS)A) which amends the Higher Education and Research Act 2017 and replaces the duty previously imposed on universities under s.43 of the Education (No.2) Act 1986, places duties on the Board of Governors to take steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order for it to achieve the objective of securing freedom of speech and academic freedom within the law for its staff, members, students and visiting speakers (we refer to this in this Code as the Secure Duty).
2. The HE(FoS)A defines freedom of speech and academic freedom as follows:
2.1 Freedom of speech: means the freedom to impart ideas, opinions or information (referred to in Article 10(1) of the European Convention on Human Rights as it has effect for the purpose of the Human Rights Act 1998) by means of speech, writing or images (including in electronic form);
2.2 Academic freedom, in relation to the University’s academic staff: means their freedom within the law (a) to question and test received wisdom; and (b) to put forward ideas and controversial or unpopular opinions, without placing themselves at risk of being adversely affected by (i) loss of their jobs or privileges at the University; or (ii) the likelihood of their securing promotion or different jobs being reduced.
3. The Secure Duty includes securing that the use of the University premises:
3.1 is not denied to any individual or body; and
3.2 the terms on which such premises are provided are not to any extent, based on any ground in relation to the ideas or opinions of individuals or the policy or objectives of the body.
4. So far as relating to academic staff, the Secure Duty includes securing Academic freedom (as defined above). It also includes a duty, when recruiting academic staff, to secure that an applicant is not adversely affected in relation to their application because they have exercised their right to academic freedom.
5. It also prohibits the University from entering into a non-disclosure agreement with any University member, staff member, student or visiting speaker relating to a complaint they have made of misconduct or alleged misconduct which relates to: sexual abuse, sexual harassment, sexual misconduct, bullying or harassment.
6. The HE(FoS)A requires the Board of Governors to maintain a Code of Practice and at least once a year bring it to the attention of all the University’s students.