Sexual Misconduct and Sexual Harassment Policy - Procedure and Guidance

Definitions

Definitions in relation to this procedure are set out in the Appendix. These definitions cover both sexual misconduct and sexual harassment through any medium, including, for example, online.

1. Expected Standards of Behaviour for Staff

1.1 The University believes that the professional relationship of trust and confidence that exists between all members of the University is a central and essential part of a student’s educational development and pastoral care and of the staff experience.

1.2 All University staff are in a position of trust. It is important that we all demonstrate exemplary behaviour and recognise we are all responsible for creating a safe, respectful, supportive, and inclusive environment. This environment must be conducive to teaching excellence, research excellence and the enjoyment of a positive student and staff experience – and free from sexual misconduct, harassment and other forms of abuse and inappropriate behaviour. Those who work for or represent the University must not abuse their position in any way. All University staff are expected to comply with the Personal Relationships Policy.

1.3 All members of the University community must seek consent when their behaviour involves interacting with each other in a sexual manner in a social context. Consent is agreeing by choice and having the freedom and capacity to make that choice. The person seeking consent should always take steps to ensure that consent is freely given, that it is informed and recognises that it can be withdrawn at any time. It can never be assumed, implied or coerced. If consent is uncertain then any behaviour should be stopped.

1.4 Should the University receive a complaint from a member of staff of sexual harassment/sexual misconduct against another member of staff, the University may instigate procedures as set out in section 5.1 below depending on the circumstances.

1.5 Complaints from a student against a member of staff will be considered under the Student Complaints Procedure, as summarised in section 6 below.

2.  Relationships

2.1 The University’s Personal Relationships Policy prohibits close personal or intimate relationships between staff and students where there is direct supervision or pastoral care. Refer to the Personal Relationships Policy for details.

2.2 The provisions of the University’s Safeguarding Policy must be adhered to.

3. Expected Standards of Behaviour for Students

Students are expected to comply with the expectations for student behaviour in the Student Conduct Regulations. All students are expected to treat other with dignity and respect: sexual harassment and sexual misconduct will not be tolerated.

Reports of sexual harassment/sexual misconduct by a student towards a member of staff and/or another student will be considered under the Student Conduct Regulations.  Where a case is investigated and upheld, sanctions available include temporary or permanent exclusion from the programme of study.

4. Reporting Channels

All members of the University community are encouraged to report cases of sexual harassment/sexual misconduct whether they are the recipient of the behaviour or are witness to it as soon as reasonably practicable. Sexual harassment/sexual misconduct may also lead to a criminal investigation being instigated into the actions of a member of staff or student.

5. For Staff

5.1 Where a staff member is making a complaint about a member of staff, complaints should generally be made to their own line manager. Where this is not appropriate, advice should be sought from the relevant College/Professional Services HR Team. Further sources of support are signposted in section 9.1 below including Union representatives (for union members) UCU, Unite or Unison.

Where a staff member is making a complaint about a student, this should be raised under the Student Conduct Regulations by emailing studentcases@cardiff.ac.uk. If the complaint is taken forward for formal investigation, the Student Cases team will liaise with the HR team to agree who will be responsible for keeping the member of staff updated during the process.

5.2 If a member of staff becomes aware of potential sexual harassment or sexual misconduct between a colleague and a student or another member of staff, they should report this to their line manager, or other relevant senior manager, who will liaise with HR and the relevant Head of School/Professional Service to determine whether an investigation is required in accordance with the relevant procedure

5.3 Sexual harassment and sexual misconduct can also give rise to situations where there is coercive and/or controlling behaviour. If any person has concerns about any predatory or coercive behaviour between members of our community, they are encouraged to report or disclose this to their line manager, or other relevant senior manager, who will ensure that such reports are recorded. The manager will liaise with HR and the relevant Head of School/Professional Service to determine whether an investigation is required in accordance with the relevant procedure.

6. For Students

6.1 A student can start a complaint relating to sexual harassment or sexual misconduct, by a member of staff or a student under the Student Complaints Procedure. In addition to support from the Student Support Intervention Team, students can access impartial, confidential, free advice and guidance on submitting a complaint from Student Advice in the Students’ Union. Complaints relating to sexual harassment or sexual misconduct should be sent directly to the central Student Cases team:  studentcases@cardiff.ac.uk

6.2 If the complaint is about a student at the University, Student Cases will consult with the reporting student about the options available to take action or investigate under the Student Conduct Regulations.  Investigations are led by an investigating officer with training and experience of investigations into sexual misconduct.

6.3 If the complaint is about a member of staff, Student Cases will liaise with HR, with the reporting student’s consent, to determine whether the case should be managed in accordance with staff processes.

6.4 If a student makes a complaint directly to HR with concerns about a member of staff’s conduct, HR will recommend that the student submits this as a student complaint so that the student is provided with updates and an outcome under the Student Complaints Procedure.  If a student decides not to raise a student complaint, HR can continue with their processes with the reporting student as a witness to events.

7. Procedures for other individuals who are neither staff nor students who wish to raise an issue under this policy

7.1 Where the complaint relates to concerns about the behaviour of a Cardiff University student, this should be raised with Compliance and Risk - complianceandrisk@cardiff.ac.uk. The University will decide if it is appropriate for action to be taken under the Student Conduct Regulations.

7.2 Where the complaint relates to the behaviour of a member of Cardiff University staff, this should be raised with the appropriate Head of School/Professional Service who will arrange for the matter to be investigated and responded to. Further information about who to contact can be found here.

8. Handling of investigations and confidentiality

8.1 A trauma informed approach will be adopted to any disclosure of sexual misconduct or sexual harassment ensuring that anyone disclosing sexual harassment, sexual misconduct, violence or abuse knows that the situation is taken seriously. Staff and students will be supported to make informed choices about whether to start a complaint about the conduct. Any investigation into sexual misconduct or sexual harassment will be managed in a way that is fair and sensitive to:

the individual who made the complaint,

the individual who witnessed it,

the individual accused of sexual misconduct or sexual harassment.

8.2 Victimisation or retaliation against a complainant will not be tolerated, with any issues raised under this policy treated and dealt with seriously, regardless of the seniority of those involved.

8.3 Confidentiality will be maintained, subject to any requirement to involve external agencies, where a criminal offence may have been committed or where maintaining confidentiality would pose a risk to the person making the report, or to others.

9.  Support and Advice

There are many sources of support available to individuals prior to making a complaint or to both the complainant and alleged perpetrator once a complaint has been made. These include:

9.1 For Staff

• Union representatives (for union members) UCU, Unite or Unison
• Dignity and Wellbeing Contacts 
• College/Professional Services HR Team
• Chaplain Service

Support is also available from our Employee Assistance Programme. It provides a free confidential helpline and support for staff, and access to face-to-face or telephone counselling. The service is completely confidential. No information which could lead to an individual’s identification will be given to the University unless you provide your explicit permission to do so. Exceptions to this are where the safety of yourself or others is threatened, or where the University is legally required to release information.

9.2 For Students

The Student Support Intervention Team supports students affected by harassment, hate crime, sexual violence, relationship abuse, bullying and other forms of unacceptable behaviour. The team takes a trauma informed approach to providing support for students and helping them make informed decisions around next steps. Students can make identified disclosures using the online referral form or may choose to make an anonymous disclosure. Both the referral form and other sources of support can be found on the Student Support Intervention Team and Health and Wellbeing pages. The team will explain reporting options and offer support whilst reporting, if this is an option that is right for you. The Students’ Union can also provide support to students making a formal complaint.

Appendix – Definitions

Sexual interaction:

Sexual interaction that is invited, mutual and consensual is not sexual harassment because it is not unwanted.

Sexual Misconduct:

Sexual misconduct encompasses elements of harassment, violence and abuse and can be physical, verbal or visual. It can take place within and across different genders. It includes sexual assault which is a criminal offence.

Sexual misconduct is unwelcome conduct of a sexual nature which is committed by force, intimidation, or coercion. The conduct can relate to physical acts against individuals or acts which create a hostile environment. It can occur between individuals whether they are previously known to each other or not, individuals in an established relationship as well as individuals who have previously engaged in sexual activity.

Sexual misconduct is a form of harassment and is unacceptable behaviour of a sexual nature. Sexual misconduct means any unwelcome, unwanted or attempted unwanted conduct of a sexual nature. This includes, but is not limited to:

• Sexual harassment (as defined by Section 26 (2) of the Equality Act 2010), unwanted conduct which creates an intimidating, hostile, degrading, humiliating or offensive environment (as defined by the Equality Act 2010),
• assault (as defined by the Sexual Offences Act 2003),
• rape (as defined by the Sexual Offences Act 2003),
• physical unwanted sexual advances (as set out by the Equality and Human Rights Commission: Sexual harassment and the law, 2017),
• intimidation, or promising resources or benefits in return for sexual favours (as set out by the Equality and Human Rights Commission: Sexual harassment and the law, 2017),
• grooming (grooming occurs when someone builds a relationship of trust and an emotional connection with another person so they can manipulate, exploit and abuse them,
• coercion or bullying with sexual elements,
• distributing private and personal explicit images or video footage of an individual without their consent (as defined by the Criminal Justice and Courts Act 2015).
• sexual invitations and demands,
• creation of atmospheres of discomfort.

The term ‘sexual harassment’ captures only some of the possible abuses of power that may occur. Sexual misconduct more specifically raises issues of unequal relationships, consent, and the prevention of equal access to education, opportunities and career progression.

Sexual assault:

Sexual assault is a criminal offence. A person commits sexual assault if they intentionally touch another person, the touching is sexual and the person does not consent.

It involves all unwanted physical contact of a sexual nature and ranges from pinching, embracing, groping and kissing, to rape and sexual assault which involves penetration without consent.

Important to know:

• Consent is agreeing by choice and having the freedom and capacity to make that choice.
• A person is free to make a choice if nothing bad would happen to them if they said no.
• Capacity is about whether someone is physically and/or mentally able to make a choice and to understand the consequences of that choice.

Sexual Harassment:

Sexual harassment is specifically outlawed as a form of unlawful discrimination by the Equality Act 2010. Claims can be made in an employment tribunal by job applicants, employees, and apprentices.

Whether or not the harasser intended to be offensive is irrelevant. The limit of acceptable behaviour is up to the recipient to decide. A single incident or persistent behaviour can amount to harassment. The qualification in relation to the legal definition of harassment under the Equality Act 2010 will be taken into account: that is whether it is reasonable for the claimant to be offended taking into account the particular circumstances in which the conduct or communications took place.

The Equality Act 2010 protects employees and workers, contractors and self-employed people and job applicants from sexual harassment. Sexual harassment is unwanted behaviour or conduct of a sexual nature which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient.

Anyone of any gender identity can experience sexual harassment and anyone of any gender identity can carry out sexual harassment.

If behaviour creates an intimidating, hostile, degrading, humiliating or offensive environment for other people at work, it can be classified as sexual harassment. Examples of this can include overhearing or witnessing other people discussing or sharing lewd or sexually explicit content in the workplace.

Sexual harassment¹: Sexual Harassment occurs when an individual engages in unwanted behaviour of a sexual nature.  It includes but is not limited to:

Verbal:

• sexual comments or jokes
• propositions and sexual advances
• intrusive questions about a person’s private or sex life, and discussing your    own sex life
• sexual posts or contact on social media
• making promises in return for sexual favours
• spreading sexual rumours about a person
• sending sexually explicit emails or text messages

Non-verbal:

• displaying sexually graphic pictures, posters, or photos
• suggestive looks, staring or leering
• unwelcome touching, hugging, massaging, or kissing

Physical:

• sexual gestures
• criminal behaviour, including sexual assault, stalking, grooming, indecent exposure and sending offensive communications
• controlling and/or coercive behaviour: defined as repeatedly or continuously engaging in controlling or coercive behaviour towards an intimate (or ex) partner or family member which has a serious effect on them. ‘Serious effect’ means that it causes them to fear that violence will be used against them, or it causes them serious alarm or distress which has a substantial adverse effect on their usual day-to-day activities (such as socialising, working patterns, mental or physical health deterioration).

Sexual harassment can be a one-off event and does not need to be directed at a person and can be undertaken through any medium, including, for example, online.

An individual can experience sexual harassment or sexual misconduct from someone of the same or different gender and the recipient of the behaviour decides whether it is unwanted. Sexual conduct that has been welcomed in the past can become unwanted.

These definitions include harassment and sexual misconduct through any medium, including, for example, online including social media platforms for personal/professional use. Forms of online harassment include those stated here.