The first crucial steps: how Universities should respond to allegations of misconduct

Co-written by Christina Orthodoxou, Kingsley Napley and Tim Grey, 23 Essex Street

8 September 2020

University providers owe a duty of care towards staff members and students; this duty takes on particular significance during a disciplinary process and it is essential that Universities provide appropriate and relevant information and support to all parties involved in allegations of misconduct. This duty stands regardless of whether the University (or an employee of the University) is making the allegation, or if the report is from one student against another. In the former case, the University will need to ensure a level of division between the secretariat responsible for the overall process and the investigatory team (who are responsible for the overall conduct of the investigation and if necessary, prosecution of the allegation).

We look below at those crucial first steps that need to be taken by a University following a complaint of non-academic misconduct.

Do students know who to report to?

It is best practice that all staff within the University have an understanding of what steps to take if a student reports misconduct to them, as a student is likely to turn to a member of staff that they have regular contact with and are familiar or comfortable with. We recommend that each academic division of a University, whether organised in schools of learning or in departments, identifies a single member of staff to act as an initial contact point should a complaint be received by a member of staff.

 

Are any precautionary measures needed?

Swiftly following a complaint, Universities must consider the welfare of the students (and/or staff) involved in the allegation and decide if any precautionary measures need to be taken to safeguard the parties or to enable a full investigation to be carried out. Some complaints may mandate that swift action is taken and the use of an (already created) risk assessment tool is an imperative when considering whether any precautionary action is required. Universities must ensure that they treat both students (the complainant and the accused) fairly and equally.

The type of measures that could be considered in order to safeguard the parties or to enable a full investigation to be carried out might involve imposing conditions on the accused student, or temporarily suspending them from the University, pending the outcome of the investigation. Any precautionary action taken must be assessed on a case by case basis and must be reasonable and proportionate. In considering a suspension, Universities must remember that this is likely to have serious consequences on a student’s life and studies and as such, should be seen as a measure of last resort. No decision as to action to be taken should be made without providing the student in question a reasonable opportunity to make representations to the decision-maker. A decision to suspend should be made by a senior member of staff and they should be satisfied that there is no alternative, less impactful measure that could be put in place that would adequately protect the University population and/or preserve the opportunity to investigate the complaint.

Any precautionary measure deployed should be for a specified period of time and should be regularly reviewed, particularly as the investigation develops or if there is a material change in the facts or evidence in the case. The right to seek a review of the decision should be available to the student if new information becomes available.

 

Early steps in responding to a complaint

Taking a first disclosure

It is essential that when a complaint is first reported, it is dealt with appropriately by the University. Failure to do so at this initial stage could result in detrimental outcomes for the complainant and the accused, and, consequently, also for the institution.

It is crucial that the staff member who receives the initial complaint focuses on listening to the complainant but does not question him/her to elicit details of the incident. They should not interject when the complainant is recalling the events, but allow him/her to tell the story freely and without interruptions.

When asking questions, they should ensure they are open-ended, to avoid asking questions which are leading. The staff member should ask no more questions than is necessary in order to take immediate action.

At this initial stage, only brief notes should be taken when the complainant is first reporting the allegation. It may be distressing for them to recall the events; this will enable the staff member to give their full attention and support to the complainant. The note should detail the individuals involved, a brief summary of the allegation, and any advice given.

Record keeping

Universities should have clear processes in place for recording and documenting actions and decisions made by the institution, from the moment the allegation is reported, until the investigation is concluded.

Staff members should record details of the initial complaint made and any subsequent discussions with the complainant and ensure that this log is made available to the individual who subsequently investigates the allegation.

Not only does clear and accurate recording make successful challenges to the process less likely, it also enables the investigator to provide information to other agencies if required (for example, the Police).

Allocating an investigating officer

When appointing an internal investigating officer, Universities should ensure that the appointee has had no prior involvement in the complaint and does not know any of the parties involved. A senior member of a different department is usually the most appropriate person to select.

To ensure a fair process, the individual tasked with investigating must be properly trained to investigate and to provide advice on internal and external support, as well as being properly resourced and supported. Failure by the University to appoint someone suitable could have major implications on the conduct of the investigation and may ultimately lead to a complaint being made to the Office of the Independent Adjudicator (OIA).

Preservation of evidence

Before any interviews of witnesses take place, the investigator must promptly consider what evidence is available and what steps need to be taken to preserve evidence. For example, if relevant CCTV exists, the investigator should take immediate steps to ensure the video footage is secured and not deleted.

If the allegation is one of sexual misconduct, the University should advise the reporting student to take steps to ensure forensic evidence is collected at the earliest opportunity, and how and where to do so. The University, in association with the complainant, should strongly consider whether the matter should be reported to the Police. In most cases the ultimate decision will be for the complainant.

Advice on support

Students (both the complainant and the accused) should be made aware of the support services available both internally and externally. This could be the University’s students’ union, which can provide independent support and advice throughout the process, as well as accompanying the student to any meetings with the investigating officer. If it is not possible for the University’s internal services to offer support (this can arise in smaller institutions where the reporting student approaches the student services before the accused student (or vice versa), which leads to the service being conflicted), the University should try and arrange alternative support. This could be with another institution or local community services.

Universities must treat reporting students and the accused student fairly. When considering what support is required, consideration should be given to academic, health and well-being issues for both parties. If the allegation is one of sexual misconduct, information and guidance should be given to assist students accessing specialist external services.

Disabilities and health issues should be taken into account to ensure the students are provided with reasonable adjustments throughout the disciplinary process. Disciplinary proceedings are extremely stressful for all who are involved, and so it is important that students are advised on the support services available to assist with their mental health during the process.

Advice on reporting to the police  

In cases involving an allegation that may be tantamount to a criminal offence, the reporting student should make the decision of whether he/she wants to report the conduct to the Police, with support from the University. Whatever they decide, the University should support them in that decision.

It is crucial that the reporting student is made aware of the differences between a University’s internal disciplinary process and a criminal process before they make their decision, as these are very different. The main differences are:

  • A disciplinary process is an internal, civil matter which deals with a potential breach of the University’s rules. A criminal process is an external procedure outside of the University’s control, and will consider whether the student complained of has committed a criminal offence.
  • Only a criminal court can make findings of criminal action; the allegation must be proven beyond reasonable doubt. This is distinct from disciplinary cases where facts and matters must be established on the balance of probabilities i.e. is a fact or matter in dispute more likely than not to have occurred.
  • A disciplinary investigation will be more limited in nature and resources than a criminal investigation.
  • The most serious sanction a University can apply is permanent expulsion from the institution. Once the student has left the institution, any restrictions or conditions that were placed on them by the University will no longer be enforceable. In contrast, the criminal courts have an array of sentencing powers (including imprisonment).

 

Dealing with alleged misconduct that may also be a criminal offence

Universities UK’s Guidance For Higher Education Institutions, How To Handle Alleged Student Misconduct Which May Also Constitute A Criminal Offence provides Universities with specific recommendations for dealing with allegations of criminal misconduct, including sexual misconduct. In cases where one student makes an allegation against another student, Universities owe the same duties and obligations to both students and need to take steps to protect both students from harm. If the allegation of misconduct is reported to the Police, then the criminal process usually takes priority over a disciplinary investigation. Any internal process relating to the same facts should ordinarily be paused until the criminal matter is concluded.

It is important that staff members involved in the case are aware that the Police have power to seize any notes made and documents created for use as part of the criminal investigation. Individuals can also be compelled to give evidence (which is not the case in University disciplinary proceedings). It is therefore vital that records are clear and accurate.

If, following the conclusion of the criminal process, the University proceeds to investigate the allegation under their disciplinary procedures, they should investigate it in the same way as any other potential breach of discipline and not as a criminal offence. However, the University should be slow to “go behind” the conclusions reached by the Criminal courts, whose judgment may be evidence (often compelling) as to the truth or otherwise of an allegation.

 

Confidentiality

Students accused of a disciplinary breach will not only be concerned about the impact that an adverse finding will have on their lives and studies, but also on their reputation. Universities must ensure that an appropriate level of confidentiality is afforded to those involved in an investigation; personal data should only be accessible to relevant staff members involved in the disciplinary process.

When dealing with sensitive personal data or “special category data”, institutions must have regard to their obligations under the prevailing data protection legislation (Data Protection Act 2018). Special category personal data includes information about a person’s health (including mental health), race, ethnic origin, religion, sexual orientation etc., and should be kept strictly confidential.  

There are many practical steps which a University can take to ensure they comply with data protection legislation, including:

  • Properly safeguarding information about students who are subject to disciplinary proceedings.
  • Ensuring the information is disclosed to as few people as possible and only to those who are directly involved in the investigation. Before information is passed on, consideration must be given as to whether it is necessary for the receiver to have that information.
  • Processing and sharing special category data only where it is necessary to enable the University to fulfill its duties of care to the students involved, or to safeguard third parties.
  • Ensuring hard copies of personal information are kept in a secure location and any personal data stored electronically is stored on a secure IT network.

 

Checklist

We have set out below a checklist of the first crucial steps upon receipt of a complaint:

  1. Make sure students know to whom they can make a complaint
  2. Take the initial complaint in a non-leading way and record it accurately
  3. Appoint a suitably trained investigator to take the investigation  forward
  4. Keep a log of contact with all parties, evidence obtained and decisions made
  5. Focus on confidentiality throughout the investigation: restrict information only to those directly involved in the investigation, and ensure all sensitive data is securely held
  6. Focus on communication: ensure clear and transparent communication with both the complainant and accused, so that both are clear on the process and their duties, rights and obligations within the process
  7.  Advise the complainant on referral to the police if appropriate 
  8. Offer suitable support to the complainant and the alleged perpetrator
  9. Preserve evidence: CCTV, emails, photographs. Advise the complainant regarding any forensic evidence in sexual misconduct cases
  10. Consider if interim measures are necessary and proportionate

The investigation process itself and case to answer decisions, will be considered in our next blog.

Further information

If you have any questions or require advice concerning issues relating to students or universities, please email a member of our team in confidence.

This blog has been co-written by Christina Orthodoxou, Kingsley Napley and Tim Grey, 23 Essex Street 

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