Student misconduct investigations – What is #trending ?

22 July 2021

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

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:

  • Poor or insufficient investigation procedures which impose obligations on the student who is facing the allegation to:
  •  Collect evidence from witnesses because the university has failed to do so;
  •  Ask for evidence that the university has obtained ahead of interview to ensure the student can respond to the same, and which is relied upon to support the allegation;
  •  Demonstrate that they did not do the conduct they were accused of, rather than the investigation being conducted from a place of neutrality. This is demonstrated by questions such as: ‘why would they lie?’ and ‘how can you prove you have not done that which is alleged?’;
  • Staff in welfare or supportive roles for the student accused of misconduct, giving witness statements against the student facing the allegation, where the student has not been informed that the staff may do so before engaging in that welfare relationship;
  • Universities belatedly issuing warnings which have the effect of a final warning, at the time of subsequent conduct;
  • Universities handing out inconsistent sanctions for the same conduct;
  • Students being refused permission to have a support person in meetings or disciplinary hearings meaning they often do not fully appreciate the significance of what has or will happen if the misconduct is proved;
  • Not permitting a student to have legal representation at disciplinary hearings, even where the student is facing serious allegations which may result in the most serious sanction including expulsion or exclusion, where the case law supports the right for legal representation in such instances;[1]

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.

 

So what should universities be doing?

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. 

 

Takeaways

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.

FURTHER INFORMATION

If you have any questions or concerns about the content covered in this blog, please contact a member of the Regulatory team.

 

ABOUT THE AUTHOR

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.

 


[1] See the case of  AB v The University of XYZ (Rev 1) [2020] EWHC 2978 (QB) which applied the test in ex p Tarrant [1985] QB 251

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