The FCA – Transformation to Assertive Supervision
Poor investigation and disciplinary proceedings in universities for students accused of academic or non-academic misconduct are unfortunately common. But what should Universities be doing to support those who are the subject of an investigation and how should universities ensure their procedures protect all parties involved?
We regularly act for students in respect of investigations relating to serious allegations of misconduct. In each of these cases, there are a series of learning points that can be gleaned and shared to help both students and universities in the future. Importantly, universities must recognise that investigations of this nature can have a significant and lasting impact on the mental health of the students involved, and on potential career prospects.
The issues we have seen range from minor procedural defects to substantively unfair and disproportionate sanctions imposed following deficient investigations. In respect of the former, whilst they may be minor in nature, they nonetheless have a negative effect on the overall perception of fairness and impartiality of the investigation, and can lead all parties involved to be dissatisfied with the outcome – thereby leading to challenges. Some of those key and repeated issues are:
The enormous burden placed on the student accused of misconduct to fund legal representation to attempt to ensure the university involved follows a fair and fulsome procedure, which respects the rights of the student accused.
These are just a handful of examples of our experiences of students facing procedures at universities, with potentially very serious consequences for those involved.
The overriding issue is one of fairness to all parties, not just the complainant. Universities seemingly respond with knee-jerk reactions, i.e. excluding students, when reasonable adjustments can be made to ensure they do not come into contact with the complainant during the course of the investigation, rather than taking stock of the complaint, considering its veracity early-on based on the available evidence, considering the initial steps that need to be taken and conducting the investigation in a balanced manner from the outset. If this is done, even where a sanction may be imposed at the conclusion which is punitive, challenges are far less likely if the student under investigation feels that the process has been fair and that they have had ample opportunity to present their case.
Intrinsically linked to these issues, is the need for published sanctions guidance on the sanctions available, and which dictates the need for proportionate and consistent sanctions for like conduct. These steps are not difficult, but ensure fairness in proceedings to a complainant and the accused student.
It is important if you are facing an allegation of academic or non-academic misconduct that you know explicitly what the allegation is against you. You should also ensure that the university has provided you with all the evidence it says supports the case against you.
It is also worth asking any support/welfare person allocated to you whether they have the ability to make a statement in the course of the proceedings. If so, you need to be mindful of this.
Ultimately, in serious cases, especially those which may lead to expulsion, our experience shows that better outcomes are obtained when the student has representation. The ability to have representation needs to be secured early on, and may involve procedural arguments ahead of any substantive interview or hearing.
If you’re concerned about an allegation, current investigation, or need to understand your rights, get in touch with our Students Team.
If you have any questions or concerns about the content covered in this blog, please contact a member of the Regulatory team.
Sophie Bolzonello is an associate, Australian Qualified, in Kingsley Napley’s Regulatory department. Sophie specialises in advising regulated professionals on compliance, in investigations and in respect of enforcement action. She also advises regulators on policy, governance, prosecutions and litigation.
 See the case of AB v The University of XYZ (Rev 1)  EWHC 2978 (QB) which applied the test in ex p Tarrant  QB 251
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