Universities UK (UUK) - How to handle alleged student misconduct: Case studies

The new publication, authored by Nicola Bradfield, Associate Pro Vice-Chancellor at Coventry University, is an update to UUK guidance first issued in 2016 on handling alleged student misconduct, written by law firm Pinsent Masons. The updated guidance sets out a framework and case studies to guide institutions in handling investigations and is part of UUK’s Changing the Culture work. It was prepared with assistance from a UUK working group made up of staff from Pinsent Mason and from several universities. Each case study is designed to highlight potential responses to a specific situation and focuses on one or two elements of that response. The guidance does not constitute legal advice and it remains the case that universities must assess and respond to misconduct claims on a case-by-case basis and in compliance with their own policies and procedures.

The full report can be found here

At-a-glance:

• Careful communication can avoid feelings of frustration and disappointment for the reporting student, who may be unclear about what happens during an investigation/disciplinary process, timescales and possible outcomes (p4)
• Reporting students should be informed of their options in a neutral manner and provided with an outline of each process. This should include advantages, disadvantages and limitations, and the impact that choosing one option may have on the ability of the student to pursue another option later on (for example, a university investigation could potentially prejudice any subsequent criminal investigation) (p4)
• Reporting students should be given a key contact. Reported students should have a different key contact. Those individuals should be sufficiently independent from the disciplinary/Fitness to Practise processes to allow them to focus on supporting the students. The individuals should be trained and experienced and clear communications must be maintained throughout (p4) 
• Any potential limitations on the information that can be disclosed to the reporting student should be made clear. This can be determined in accordance with UUK’s 2022 guidance, Sharing personal data in harassment cases. Reporting students may receive information about whether the allegations have been upheld or not, but may not receive details of any sanctions imposed (p4)
• A key consideration is what procedure should be followed, for instance a disciplinary procedure and/or a fitness to practice procedure (p9)
• A number of factors should be considered when determining whether precautionary action should be taken while investigating allegations of misconduct, including whether the reported student constitutes a risk to others (if police are involved, they should be consulted on this risk assessment) (p12)
• A range of actions, not just suspension, can be considered eg limited time on campus and online study. Any action will need to be justified and processes must allow for a change in measures (p12)
• A police investigation will take priority, and internal disciplinary investigations should generally be paused until the police have concluded the criminal process (p16)
• Information gathering and sharing is a sensitive issue. The test for disclosure is set out in UUK’s 2022 guidance, Sharing personal data in harassment cases; information can only be disclosed if a lawful basis for sharing has been identified, and that has to be assessed on a case-by-case basis (p18)
• Universities should ensure that internal staff understand that data protection requirements do not prevent them reporting incidents or allegations to the relevant areas, for example welfare services, student disciplinary teams or case managers (p18)
• There is a wide variation within the sector in how investigations are conducted. Investigations must comply with basic requirements of procedural fairness; facts should be gathered in a fair and unbiased manner and presented to the decision-makers (p20)
• It is essential to frame the issue as a breach of contract and not a criminal offence; universities cannot make determinations about criminal matters. The investigator must not know any of the parties involved, and the scope of the investigation needs to be defined, with accurate records kept of the evidence obtained and a report produced outlining what information was obtained and how it was obtained (p21)
• There may be circumstances where a reported student is granted permission to be represented by a solicitor or barrister at the disciplinary hearing. Factors such as the seriousness of the allegation and the capacity of the reported student to understand the case against them should be considered. The university should consider whether it wants to engage its own solicitor or barrister to advise the panel (p24)
• Universities should consider whether it is appropriate to make any adjustments to the disciplinary hearing for the reporting student, the reported student and any other witnesses eg attending remotely (p27)
• The panel will need to determine what evidence is admissible eg whether a witness statement is read out if the witness does not attend. If a reported student does not attend the hearing, it should not in itself be taken as proof that the allegations are true, although it may affect the weight given to their witness statement (p28)

Implications for governance:

The issue of harassment and sexual misconduct on campus has risen up the governance agenda in recent years, driven by the rise in reporting of the issue and the introduction in 2021 by the Office for Students of the Statement of expectations for preventing and addressing harassment and sexual misconduct affecting students in higher education (in England).

In late 2022, the OfS published an independent report looking at approaches across the sector in response to the new statement of expectations (see Advance HE governance news alert). Included was a survey of 68 providers which found that 57 per cent of institutions had seen an increase in reports between 2020-22. While the upward trend in misconduct claims was a serious concern, it also indicates a welcomed development - that students have greater confidence in reporting alleged breaches.

Since 2021, universities have made significant progress in adopting the recommendations of UUK’s 2016 guidance on handling alleged student misconduct. Some 98 per cent of UUK’s members have now introduced a process where students have the option to report in person any incidences of harassment or sexual misconduct. All respondents said they provide clear information to students on how to report incidents. 

The report also found that leadership responsibility for tackling harassment and sexual misconduct had shifted to more senior roles at universities: evidence of how seriously the issue is now taken.

However, while advances have been made to tackle harassment and misconduct on campus and provide easier reporting and fairer and more efficient procedures, Professor Dame Sally Mapstone, UUK President and Vice-Chancellor of St Andrews University, said it was “clear that the sector needs to go further to build on the progress to date”.

The University and College Union, in its response to the new guidance, highlighted its own 2021 research which found that one in 10 staff experience sexual violence on campus. The union called on university leaders to “act upon the UUK guidance so that campuses become safer spaces for staff and students”.

Governors will understand the importance of handling serious student misconduct cases fairly and effectively. As well as regulation implications and the potential distress to individual students if they are not, a number of high-profile cases have demonstrated the reputational risk involved. 

The new UUK guidance, alongside earlier guidance produced as part of the UUK Changing the Culture work, provides helpful case studies of actual situations that have arisen (with details changed to secure anonymity). It lays out the steps that were taken in these instances, emphasising key considerations such as clear communications, deciding what procedures to use, the impact of a police investigation on internal investigations, the gathering and sharing of information and the conduct of hearings.

Nicola Bradfield, the author, points out that cases can be “incredibly complex” with each one requiring consideration of unique circumstances, and emphasises a need to balance the interests of the students involved and, often, the navigation of an external criminal investigation. 

The new guidance and case studies give governing boards the opportunity to look again at their own processes and procedures and to be assured that when such cases arise at their institution, its response takes into account key considerations and follows good practice.

Further regulation is expected on this issue. In early 2023, the OfS published proposals, framed as a consultation, to create a new ongoing harassment and sexual misconduct condition of registration which would require universities to publish a single document explaining its approach to tackling harassment and sexual misconduct, including, among others, details of arrangements to support students, staff training and the steps is it taking to provide a “significant and credible difference in protecting students from harassment and sexual misconduct”.