Education briefing - OfS – the new condition on harassment and sexual misconduct

In this series of briefings we have been looking at different aspects of the new condition – the majority of these provisions will come into effect on 1 August 2025 but one of them, relating to non-disclosure agreements (NDAs) which seek to prevent or restrict students from disclosing information about an allegation of harassment or sexual misconduct, applied from 1 September 2024.

In this, the sixth and final briefing in the series, we consider the implications of this.

What are the restrictions and when do they apply?

Condition E6.10 states that providers must not include any restricting provisions in any contract formed or varied on or after 1 September 2024.

Restricting provisions are any provisions that have the object or effect of preventing or restricting any student from disclosing information to any other person about an allegation of harassment and/or sexual misconduct, which in any way involves or affects one or more students.

The concern is that preventing students from speaking about their experiences may protect the reputation of perpetrators and allow them to continue inappropriate behaviour at the same or a different provider. This particular provision has been brought in earlier than the rest of the condition as the OfS considered it important to implement regulatory requirements in relation to this issue as soon as possible.

The guidance says that providers could also consider how to best prevent the use, enforcement and/or reliance of NDAs in matters relating to harassment or sexual misconduct by third parties, such as placement providers, as this would amount to a significant and credible step towards addressing harassment and sexual misconduct,

This provision only applies to NDAs in relation to students and therefore does not cover restricting what staff can say. In its response to the consultation the OfS says that it has limited the provision on banning NDA to students as their primary regulatory interest in introducing the condition is to protect students from being prevented from speaking about their experiences of harassment and sexual misconduct and it recognises that it may be necessary to place obligations on staff to uphold and maintain the integrity and fairness of the complaints and disciplinary processes.

It does, however, comment in the guidance that providers should consider the wider requirements of the condition in applying NDA restrictions to other persons such as staff, and should not inhibit discussion of issues that might support those who have experienced harassment or sexual misconduct, or not allow issues to be aired and properly addressed.

What should providers do now?

Given that this provision now applies it is important that providers comply with it moving forwards and check (if they have not already done so) that any standard agreements they have with students do not contain restrictions that would breach the conditions.

In relation to staff, many higher education providers are already signed up to the voluntary pledge to not use NDAs to silence people who come forward to raise complaints of sexual harassment, abuse or misconduct, or other forms of harassment and bullying. Those who are not will need to consider whether the introduction of this condition, whilst not directly applicable to staff, means a change in the way any NDAs are used moving forwards. In any event, such provisions cannot be used to prevent disclosures that would amount to whistleblowing complaints or allegations that a criminal offence has been committed.

How we can help

Our specialist higher education team can audit your student agreements, advise on how to handle complaints of harassment and sexual misconduct and on the interface between NDA’s and confidentiality obligations.