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27 June 2023

Protection from Sex-Based Harassment in Public Bill

Legislation is making its way through Parliament, currently in the Lords, which will make public sexual harassment a specific offence and carry a maximum prison sentence of 2 years.

Partners in our Litigation, Arbitration and Dispute Resolution Team Ane Vernon and Mark Jones discuss the implications of the new Bill.

Legislation is making its way through Parliament, currently in the Lords, which will make public sexual harassment a specific offence and carry a maximum prison sentence of 2 years (a significant increase from the 6 months currently available). The aim of the legislation is to encourage more victims to report incidents to the police and make people feel safer in public spaces.

The new offence, which would add a new section, 4B of the Public Order Act 1986, will create an offence of causing intentional harassment, alarm or distress to a person in a public space where the behaviour is because of that person’s sex.

The new law will focus on unwelcome and unwanted behaviour that is directed at a person in a public space because of that person’s sex. Examples of behaviour which will be caught under the new offence include persistent staring, making sexual or obscene comments (catcalling), making obscene or offensive gestures, pressing against someone in a sexual way on public transport, walking closely behind someone as they are walking home, obstructing their path etc.

The proposed new legislation creates additional considerations for schools.  Schools will need to heed the existing duties laid down in statutory guidance, applying and where necessary extending the principles appropriately in the light of the proposed new legislation.

On 12 June 2023, a report[1] published by the End Violence against Women Coalition found that sexual harassment and abuse remain ‘pervasive’ in UK schools.  This includes sexist name-calling, unwanted sexual comments, being pressured to send sexual images, unwanted touching and sexual assault. It is reported that sexual harassment and abuse are disproportionately experienced by girls. LGBTQ+ pupils are also more vulnerable to gender based violence and ethnicity, religious clothing and disability are factors that increase the likelihood of a pupil being subjected to sexual harassment or violence.

Given the shockwave following the Everyone’s Invited initiative in 2020 and Ofsted’s findings in its report on sexual abuse in schools and colleges in 2021, these new reported statistics demonstrate a critical need for effective preventative education as well as appropriate, robust and consistent disciplinary action when abuse does occur.  Ofsted promoted a whole school approach for tackling sexual abuse and stressed the importance of developing a culture in which all kinds of sexual harassment and online sexual abuse are recognised and addressed. This recommendation is now reflected in the DfE’s guidance Keeping Children Safe in Education (KCSIE)[2] that stresses the importance of preventative education. Equally, the role of RSHE guidance is reviewed with this in mind.  Age appropriate education on healthy relationships and respectful behaviour begins in primary school, with RSE in secondary school presenting an obvious forum to build on values such as respect and consent, and to instil the message that sexual harassment and violence is always wrong.   Hand in hand with preventative education on what is unacceptable, or criminal conduct, a clear focus needs to be empowering young people to stand up against inappropriate behaviour and building students’ confidence in seeking help.

In terms of discipline, as it stands, schools can apply sanctions for behaviour that occurs on the premises but also for conduct outside the school gates. The DfE guidance Behaviour in Schools sets out relevant considerations for governing bodies and head teachers when applying sanctions for non-criminal inappropriate behaviour, as well as suspected criminal conduct.  In making decisions about sanctions outside the school premises a relevant factor is whether the pupil is wearing school uniform.  Irrespective of whether the pupil is identifiable as a pupil of the school, it is relevant to consider whether the misbehaviour poses repercussions for the orderly running of the school or a threat to another pupil or a member of the public.  Often enshrined as a term in independent schools’ parent contracts, a permissible consideration is the effect of the misbehaviour on the reputation of the school.  Clearly all disciplinary measures must be applied lawfully and reasonably.  Consequently, school policies should set out consequences of poor behaviour to aid transparency and consistent application.

Current guidance stipulates that where the conduct poses a threat to another individual (whether a pupil or member of the public), the police should be informed.  In making the assessment whether to call the police schools need to gather sufficient factual information and preserve relevant evidence.  It can be a delicate line to tread but even once the police are involved internal investigations may continue and schools may apply disciplinary measures provided that these do not interfere with the police action.

The proposed new legislation will not only apply to students. School leadership should ensure that all staff are alive to the new offence.  Relevant training can be incorporated into existing KCSIE and safeguarding training.  Staff will need to be aware of the relevant codes of conduct and policies (including social media and whistleblowing), as well as relevant disciplinary rules and procedures.

Ultimately, everyone associated with a school should remember the importance of professionalism, responsibility and implications for the reputation of the school.  Whether or not the Bill becomes law, schools should strive to tackle any kind of harassment and make clear to the entire school community what is and is not acceptable behaviour.


[2] KCSIE incorporates previous DfE guidance Sexual violence and sexual harassment between children in schools and colleges, which has been withdrawn.

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Ane Vernon
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Mark Jones
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