Harassment from Students in Higher Education
We are seeing an increase in the number of enquiries from HE clients seeking advice on potential injunction proceedings to stop students from harassing staff.
What Classifies as Harassment?
Universities may be able to seek injunctive relief pursuant to the Protection from Harassment Act 1997, which prohibits a course of conduct that amounts to harassment, or which a person knows, or ought to know, amounts to harassment. 'Harassment' is not defined in the Act but would include a student alarming a member of staff or causing them distress. A representative action in harassment can be pursued by an organisation where a number of its employees etc are affected.
The harassing conduct can be in many forms, but it is often in the form of numerous and lengthy emails to staff, sometimes copying in a large numbers of colleagues, and posting about staff online. It will be interesting to see how the forthcoming Online Safety Bill supports the options in these sorts of situations.
The motivation for seeking an injunction is usually to protect staff where the harassing conduct is having a detrimental effect on their wellbeing, often leading to staff absences. However, before taking any action, we recommend considering these practical considerations:
Top Practical Considerations for HEIs
- In the first instance, we would generally advise Higher Education Institutions to consider seeking the involvement of the police. Whilst this can take away a degree of control, if the harassing conduct can be dealt with by the police, either through informal visits or formal criminal action, this is likely to be a more cost-effective way of managing the harassment rather than civil action.
- If the harassing conduct is online, you could contact the platforms directly to request that they remove the harassing posts. In our experience this can be more difficult if the platform is based in the US, but we would certainly recommend this as a first port of call. You could also consider appointing specialists in search engine optimisation, which would aim to make the posts less visible on Google searches.
- If the above methods have not worked and the HEI is considering civil action, we would advise seeking buy-in from your senior leadership team from the outset. Whilst most types of civil claims are likely to be settled well before trial, this is not guaranteed. Some defendants to this cause of action may be less likely to engage in any voluntary take-down of harassing posts by way of settlement, if they feel that they have not done anything wrong. This can increase the chance of the matter needing to be pursued all the way. There is a risk that threatening action, but not following through with it, could make the situation worse. Another issue to weigh up is that taking steps towards civil action can spark a backlash of harassing conduct, which is likely to cause additional stress to affected staff in the short term.
- Civil injunctions are costly to obtain and so HEIs should consider whether it requires approval from the Charity Commission to authorise this expenditure. While unlikely to be the determining factor, you should also consider that most students are unlikely to have the means to reimburse the HEI's costs in the event that a costs order is obtained. Of course, if the HEI does not win, it is likely to have to pay the student's costs, in addition to its own, which could be substantial.
- Timing is crucial. Although the HEI may wish to wait for a period of time to see if the harassing conduct stops of its own accord, a delay alone may result in the Court refusing to grant an interim injunction and so this must be finely balanced. It is also important to bear in mind that an interim injunction is precisely that: "interim" - until a final order is made. Unless a resolution can be reached, a full claim would need to be pursued after any interim order was obtained.
- Clearly PR implications should also be carefully considered before any such action is taken.