How Universities should investigate a complaint under the disciplinary procedure
Historically, some complaints of sexual harassment and violence were regarded by HE institutions as the remit of the police and internal processes often made no mention of these types of allegations. Institutions now recognise that they have a responsibility to deal with these complaints and practices have moved on. However, it is clear that some institutions are still implementing one off interventions aimed at prevention and placing too great an emphasis on amending policies, rather than embedding a culture of change and prevention.
The suggested approach for HE providers was a whole institution approach requiring an in-depth and regularly repeated campaign, which is evidence-led and theoretically based. The focus should be on changing social norms to prevent incidences of sexual violence and harassment, as prevention is as important as the response to complaints.
Done well, prevention can set behavioral expectations and cultural norms which disrupt and dismantle unacceptable beliefs. This will in turn support victims and encourage disclosure of reports as complainants will have more confidence and trust in the institution.
Specialists ought to be brought in to deliver training and champions should be empowered to run campaigns to increase awareness, reporting and challenging unacceptable behaviors.
Key to this was the involvement of students to bring them into this process. Student Unions also play an important role in this, including by supporting both the complainant and the responding student.
As institutions owe a duty of care to both the complainant and the responding student, it was agreed that, when investigating allegations of this nature, there is a delicate balancing act to be undertaken, respecting their respective rights, as both of their educations are potentially at stake. Practical difficulties arise when complaints are made and restrictions imposed on the movement of both or either student, as they can be left feeling they are being denied access to their education.
There needs to be a renewed focus by HE institutions on what interim measures are truly necessary and proportionate when a complaint has been made. If HE institutions are to await the outcome of a criminal investigation and the delay that this will cause, particular consideration will need to be given to ensuring that the least restrictive means to protect both parties are implemented. Any such measures need to be reviewed regularly to reflect any changes in circumstances.
Some institutions have developed more flexible ways of responding to complaints so that there is an alternative to going down the route of a formal disciplinary process. Indeed, some institutions have found that complainants prefer an informal resolution agreed between the parties, with an apology from the responding student and or them receiving training rather than the formality of a disciplinary process and sanction.
Informal complaint resolution processes can work well and with the consent of both parties (on a no admissions basis) can sometimes meet the justice of the complaint from the all parties’ perspectives
Whilst there is a need to have a flexible approach for the benefit of complainants, this needs to be counterbalanced against the need for justice for the responding student. Whilst justice for different complainants might look different, justice for the accused always requires a scrupulously fair process, in particular where the allegation is tantamount to a criminal offence. Potentially life long implications can flow from findings of fact or sanctions imposed by a University as the responding student may be required to disclose it to future employers, regulators or other bodies. Whilst an informal procedure can be desirable in some cases, this must not be at the cost of important safeguards for the responding student and there will be serious cases which are plainly unsuitable for an informal resolution.
The key concerns for the future were how best to ensure that efforts to tackle sexual misconduct stay on the agenda and that the whole institution approach mentioned above is adopted in the strategies to ensure prevention, as much as it is the response to sexual misconduct complaints.
It was suggested that the key barriers to improvement were reputational concerns and buy in from senior management at institutions. However, the expectation in the post #metoo era should now mean that reputation is dependent on preventing, challenging and taking these issues seriously.
The diversity of institutions creates an inconsistency of approach between them, which impacts on both complainants and responding students. It is unacceptable that the experience they have is dependent on which institution they go to. Complainants and responding students often complain about their experiences to the Office of the Independent Adjudicator for HE (OIA). However, their powers are relatively limited to making recommendations and it was felt that we need to move past recommendations and move towards enforcement.
This is where the Office for Students (OfS), the independent regulatory body for HE in England, is stepping in. Earlier this year they launched a consultation on harassment and sexual misconduct in HE; that consultation is still open for responses and was extended due to COVID-19 with a new deadline to be confirmed.
The consultation puts forward a number of proposals to utilise existing statutory powers of the OfS to leverage and incentivise change in HE institutions as well as their having enforcement powers if necessary. This will primarily be through a Statement of Expectations which will set instructions for communicating and embedding its approach to preventing and responding to sexual harassment and misconduct to institutions. This will then be followed by an evaluation after two years which will include a call for feedback and evidence from interested parties. Following that receipt of that feedback, the OFS will either review and amend the Statement of Expectations but at least communicate with institutions so that they know what improvements to make. The proposed enforcement mechanism would be imposing conditions on registration where providers have not adequately addressed reports of harassment and sexual misconduct.
It is positive that the need for more enforcement powers focussed on this area is being considered. It will be interesting to see what effect the resulting proposals will have or whether it becomes desirable to lobby for primary legislation to expand the powers of the OfS. In the absence of a change to the legislative scheme, much will depend on how well the OfS enforces the Statement of Expectations.
Sian Jones is an Associate in the Regulatory Team. She specialises in defending regulated professionals and organisations in the finance, legal and healthcare sectors. She also defends students who face fitness to practise or disciplinary proceedings brought against them by their University.
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