SU complaint, disciplinary procedures and codes of conduct may need to change

Back in the Autumn of 2021, we launched a project aimed at helping students’ unions to navigate the challenges of student complaints.

At the time SUs were telling us that students were increasingly raising complaints about other students – and where they concerned the activities or office holders of students’ unions or their clubs or societies, that was creating real pressure on staff and officer teams.

Since then, conversations with SUs suggest that the pressures have only grown. Rapid expansion, increased awareness of processes and enhanced confidence of victims to come forward may all have helped – but are also heaping pressure onto stretched teams who may not have the capacity to properly prevent, process or refer often complex casses appropriately.

Back in 2021 there were really two ways to “interpret” the increases. One was to argue that where students would previously have collectively self-regulated their own behaviour, today they (perhaps unreasonably) ask authority figures to do that for them – in an eventually unsustainable way.

As such they lose the ability to “call each other out”, and we end up in endless quasi-legal processes over quarrels that previously would have been sorted over a coffee. Students, after all, need to learn about themselves and others in a space away from the threat and defensiveness of a formal process.

The other was to argue that previously, serious cases of harassment and sexual misconduct were left unaddressed, and perpetrators and their behaviour were not being tackled.

So having better defined what counts as unacceptable behaviour, there is now rightly an onus on bodies like universities and SUs to tackle it now that students are calling it out in complaints. Students deserve to be safe on campus in a way that they haven’t been for too long.

Both of the above were probably true to a degree. But regardless of where you might stand on the interpretation question, the question was then and is now what SUs should do about it.

The union as a membership body

There is a natural tendency of those in the higher education sector we talk to at Wonkhe to think of students’ unions as representative bodies which are able to encourage, harness and supply student engagement in work on issues like harassment and sexual misconduct gender-based violence.

But SUs are also, of course, membership organisations in their own right – where leaders, managers and trustees owe a duty of care in relation to both directly run activities and events, and those carried out by student clubs and societies affiliated to or a component part of the union.

There was never a “wild west” of unregulated student conduct either in universities or SUs – indeed the student protests of the 1970s were largely about student disciplinary processes in universities and student demands for representation on the panels that were being held.

But a significant development came in the late 2000s when, following the requirement to register directly with the Charity Commission, most students’ unions adopted a model constitution which suggested that there should be a Code of Conduct and disciplinary procedures for members.

This had emerged from casework where elected officers – both full and part time – were often assumed only to be held accountable for their conduct and behaviour through public “confidence” debates and votes – wholly inappropriate for cases of, say, sexual misconduct but wholly appropriate for occasions when someone was upset that a manifesto promise had not been delivered.

Conduct codes were therefore rapidly drawn up – routinely setting out the context in which someone’s (mis)conduct might be considered by the SU, and the process for raising a complaint or concern, matters surrounding suspension and investigation, and the handling of panels.

These often went further than the university on definitions of harassment concerning students with protected characteristics, and allowed students to raise issues about others – where there was an SU context – in a way that was faster and more empathetic than they would see from their university.

Complexity dawns

In both our review of policies and the case reviews undertaken by SUs, we identified that a lack of clarity over respective jurisdiction was a key issue.

Some students’ unions referred cases onto the university on the basis of context – was the issue “about” the students’ union or one of its groups, or events or not? That approach left open the prospect of the worst penalty only being related to the SU itself, with a student perpetrator otherwise able to continue on their programme.

Others referred cases onto the university on the basis of severity – but many trustee boards of students’ unions, with their own duty of care to their members, did not trust their university to handle cases effectively.

Some operated in a situation where both the university and SU would/could investigate or “try” a case – with problems relating to re-victimising, double jeopardy, differing definitions and so on. And in most cases precise triggers for referral were not clear, and a culture of “picking up the phone” rather than engaging formally was evident.

Over time, however, in addition to the basic “overlap” issue, casework has revealed multiple issues with SUs having their own processes:

• Where a student is an employee of the students’ union, works over the summer for the university at open days, is involved in running a society and a sports club and lives in halls of residence, in some universities that would mean six different disciplinary procedures – and in some cases six different definitions of misconduct – that we expect students to understand.
• If complaints are handled separately by six separate departments – all respecting data protection principles – there is a danger that an institution will fail to “join the dots” when they should. And students will ask – why would one part of the campus define harassment differently to another?
• There is the issue of standards. Most students’ unions would demand high standards of training of their university when it comes to investigations or panels. But where students’ unions investigate complaints, the question is whether they are able to meet those standards themselves, particularly in relation to formal training.
• Standards are also about support. The emerging OfS standards call for support for victims, perpetrators and witnesses in a given case. This is a tall order for universities, let alone SUs.
• It is right that students see their students’ union as being led by students. But does that mean that they trust the students’ union to handle any complaint they might have fairly – especially if high profile elected officers are in some way involved in the process?
• Where students’ unions are faced with legal threats or actions by students involved in harassment or misconduct cases, there is a question as to whether they are appropriately resourced and advised to proceed effectively.
• Lots of students’ unions struggle with group issues and group complaints, which can include “initiations” or other dares and stunts that involve sexual harassment and misconduct. Can or should students’ unions “punish” a whole group or club for its culture? Can or should students’ unions prevent its clubs and societies from trying to run their own processes?
• Where is the appropriate balance between “culture change” and “punishment”? When should students’ unions refer a case to the Police? And if a case comes in through a university “Report+Support” site, is the SU informed? Should it be? In what circumstances?

There are plenty of other issues – who “represents” students involved in complaints from an individual advocacy point of view, how sabbatical officer complaints are handled, and how appeals should work. Do small and specialist SUs have the resources to do any of this effectively? And as volume and complexity increases, what kinds of legal and development support do staff need who end up charged with processing these sorts of issues?

Getting serious

To address these issues, in 2021 we helped SUs convene a series of “serious case review” workshops to identify cases that others might learn from, which revealed examples of many of the above problems and many others. We still believe that approach is right for the sector more generally.

But at the same time there was an overarching question that remained unresolved. At the time, at least in England, the Office for Students (OfS) had launched its “statement of expectations” on harassment and sexual misconduct but had not given a view on jurisdiction – especially where conduct was taking place in the context of a partner like a year abroad institution, a placement provider, a franchise college or a students’ union.

That was an issue. While misconduct may take place in a context unrelated to the local students’ union, misconduct that takes place in the context of a students’ union event, activity, club or society is likely always to also be a matter that should be of direct concern to a university and any student code of conduct. But OfS was yet to progress its proposals.

At the time Universities UK was working on guidance surrounding staff-student misconduct and told us that it was working with legal experts to form a view. That view never came.

The Office of the Independent Adjudicator (OIAHE), which reviews complaints in HE in England and Wales, is also silent on these SU/jurisdiction issues in its Good Practice Framework: Disciplinary Procedures which was last update in 2018.

So while the case reviews were complete, we were loathe to make recommendations unless and until any of the key national bodies had clarified their positions. OfS has now, at least in part done so – and so we now feel able to discuss what SUs might do properly.

Frameworks

First, the law. The Education Act 1994 Part 2 places a duty on the university’s governing body to take such steps as are reasonably practicable to secure that any students’ union for students at the establishment operates in a fair and democratic manner and is accountable for its finances.

In particular it should ensure that the union should have a written constitution and that the provisions of the constitution are subject to the approval of the governing body, and reviewed by that body at intervals of not more than five years.

The current constitution of most SUs is based on an NUS Model from the late 2000s. That usually says that the union’s Board of Trustees will establish and monitor a “code of conduct” that all full [student] members shall be required to adhere to, including when those members are involved in activities or at events that are administered or organised by the union.

It also usually requires that the code of conduct or the disciplinary procedure may include a range of sanctions for breach of the code, including the suspension or removal of some of the rights and privileges of membership, including the holding of office.

In addition it usually says that at the same time as commencing the term of office as a student officer, a student officer will enter into a contract of employment with the union for a term to be determined by the Bye-Laws, with the duties and method of remuneration of each student officer shall be as set out in the Bye-Laws.

The Education Act 194 Part 2 also requires that there should be a complaints procedure available to all students or groups of students who are dissatisfied in their dealings with the union, or claim to be unfairly disadvantaged by reason of their having exercised the right to opt out of the union.

That has to include provision for an independent person appointed by the governing body to investigate and report on complaints, and requires that complaints be dealt with promptly and fairly, and where a complaint is upheld there should be an effective remedy. Some unions conflate members’ codes of conduct with procedures required under this provision.

Meanwhile every university has a policy or policies that cover the conduct of students and the processes to be followed when an allegation of a breach of the code arises. There is usually a document that sets out the standards of conduct required by students, and a formal student disciplinary procedure.

These, at least across England and Wales, have tended to be compliant with the Office of the Independent Adjudicator (OIAHE), Good Practice Framework: Disciplinary Procedures (2018) and this legal briefing from Universities UK on misconduct which may also constitute a criminal offence (2016).

In addition Universities UK has since published both a strategic and practical guide to sharing personal data in harassment cases, and a strategic and practical guide to tackling staff-to-student sexual misconduct.

For students’ unions, the Charity Commission says that protecting people and safeguarding responsibilities should be a governance priority for all charities. It says that doing so is a fundamental part of operating as a charity for the public benefit. As part of fulfilling trustee duties, whether working online or in person, a charity must take reasonable steps to protect from harm people who come into contact with the charity.

The Charity Commission will hold trustees to account if things go wrong and will check that trustees followed its guidance and the law. Trustees are expected to take responsibility for putting things right. The Commission says it will refer concerns to relevant safeguarding agencies where needed to take further action as it is not a nominated body with the power to implement safeguarding legislation.Trustees should promote an open and positive culture and ensure all involved feel able to report concerns, confident that they will be heard and responded to.

It expects all trustees to make sure their charity:

• has appropriate policies and procedures in place, which are followed by all trustees, volunteers and beneficiaries
• checks that people are suitable to act in their roles
• knows how to spot and handle concerns in a full and open manner
• has a clear system of referring or reporting to relevant agencies as soon as concerns are suspected or identified
• sets out risks and how they will be managed in a risk register which is regularly reviewed
• follows statutory guidance, good practice guidance and legislation relevant to their charity
• is quick to respond to concerns and carry out appropriate investigations
• does not ignore harm or downplay failures
• makes sure protecting people from harm is central to its culture
• has enough resources, including trained staff/volunteers/trustees for safeguarding and protecting people
• conducts periodic reviews of safeguarding policies, procedures and practice

If the Higher Education (Freedom of Speech) Bill is passed in its current form it will also place an expectation on universities and SUs to each issue a code of practice that would require the initiation of disciplinary procedures to secure student compliance with each code.

Great expectations

In England, the Office for Students’ statement of expectations on preventing and addressing harassment and sexual misconduct made a series of recommendations to higher education providers in England on the development and implementation of effective systems, policies and processes to prevent and respond to incidents of harassment and sexual misconduct.

OfS has now announced that the statement is to be elevated into a condition of registration for providers, and is proposing that that condition does six key things:

1. Provide clear definitions of harassment and sexual misconduct to support consistency across the sector that go further than many university definitions do now, including defining harassment for those without protected characteristics;
2. Require each provider to create and publish a single “document” (ie policy) explaining:
   1. the steps it will take to protect students from harassment and sexual misconduct
   2. its arrangements for handling incidents and allegations of harassment or sexual misconduct
   3. the support it will provide to those involved in incidents
   4. the training that it will provide to all students and all staff about what constitutes harassment and sexual misconduct and, in the case of staff, how to handle disclosures, formal reports, and investigations.
3. Require each registered university and college to have the capacity and resources to deliver everything required by the proposed condition.
4. Ensure freedom of speech and academic freedom are protected by requiring universities and colleges to continue to meet their legal and regulatory obligations in relation to both freedom of speech and harassment.
5. Prohibit non-disclosure agreements that forbid students from talking about incidents of harassment or sexual misconduct that they may have experienced.
6. Place regulatory requirements on universities and colleges in relation to personal relationships between students and relevant staff (for example, those involved in teaching students or marking their work).

If nothing else, if implemented and enforced much of the concern that an SU might have had in referring complaints to the university evaporates.

The question of partner organisations that have responsibility for aspects of the student experience (for example year abroad providers, placement providers, franchise colleges and students’ unions) and the issues of jurisdiction in relation to student conduct issues is [partly] addressed in the consultation.

OfS is proposing that the condition applies to students on any higher education course provided “by, or on behalf of, a provider”. This includes higher education provided to all of the students who are registered with a registered provider, taught by a registered provider or studying for an award of a registered provider (or where these services are provided on a registered provider’s behalf). It includes UK-based and non-UK-based students, and courses delivered through partnership arrangements both within the UK and internationally.

Effectively, OfS is saying that just because something happens in the context of a legally autonomous organisation, the university’s duties under the condition would still apply. That would give a provider two choices – to audit and sign off on the partner’s approach to harassment and sexual misconduct as part of the way in which it supervises the relationship with the partners, or to require the partner and students engaged in it to use university procedures.

In reality, this almost certainly means that SU Codes of Conduct should explicitly rule out handling any cases of harassment or sexual misconduct as defined by OfS and the university for a number of reasons:

• The union as an autonomous body is unlikely to be able to meet the standards set out in the condition of registration on the prevention and processing of cases;
• It will make sense for students to have a single policy and procedure with which to refer to;
• It is likely that SU will want to harmonise or agree a joint Free Speech Code and so a joint approach on conduct would make sense too;
• This would ensure that re-victimising students in serious cases and “double jeopardy” were not issues;
• As OfS will be regulating SUs on free speech but not (directly) on this condition, the danger is that SUs feel (and students feel their SU could) they are able to make judgements about balance between EDI issues and free speech that are not compatible with its statement on that balance in the draft condition. However, as the university will remain responsible for the climate on campus it would effectively have a veto anyway;
• Such an approach, with appropriate arrangements for data sharing and the ability for the university to issue punishments or sanctions relating to a student’s SU membership, would free up SUs formally from handling any such cases – allowing it to focus instead on support for students involved in these cases, supporting students on panels, lower level behaviour issues and prevention work.

A future approach

This would mean that in the future, SU codes of conduct would:

• Set out the jurisdiction that the SU has over student behaviour, restricting it carefully to union activities or events;
• Set out the meaning of misconduct and/or the standard of conduct expected, ideally harmonised with the university’s but offering more detail on issues not directly concerning harassment and sexual misconduct;
• Explicitly making clear the circumstances under which the union would not process or handle an allegation – specifically where any conduct fell under the definitions of H&SM in the university’s documents;
• Give students the option to pursue a complaint or allegation through the university but make clear that for safeguarding reasons the union may refer/share information with the university (and vice versa);
• The above would also be clear in the university’s “single document” under the OfS proposals on H&SM.

This would mean someone could still be removed from an SU meeting for shouting – but an allegation concerning an initiation ceremony case would be referred to the university. It may also be the case that the above is what is done now informally – but we think the OfS proposals mean it is important to formalise and codify the referral and jurisdiction issues we have outlined above.

There would remain complexities:

• The SU board may wish to retain the power to review the position and the efficacy of the university handling cases, as it would retain responsibilities in law and a general duty of care for its members;
• The university’s view on how it frames the “private life” of students in its own policies would likely have an impact;
• Issues surrounding GDPR and the sharing of information will need to be resolved;
• In a union’s licensed premises, security and other staff may exercise duties relating to licensing that usually include the conduct of students. Consideration would need to be given to triggers for automatic referral and information sharing;
• The issue of protest – especially where a university initiates any action against a student representative or officer would need to be resolved;
• There are a number of questions about club or society issues where group issues and group complaints, which can include “initiations” or other dares and stunts that involve sexual harassment and misconduct. University procedures would need to handle these effectively;
• Consideration would need to be given to the position of SU staff and employed sabbatical officers – although we would argue that viewing the former as university staff (and so taking part in training etc) and viewing the latter as, in the first instance, students and so subject to the university’s code, would be most appropriate.

There will also be some in SUs that lament that they would, under this arrangement, lose the ability to strike their own balance between freedom and safety, and have to adopt university timeframes, processes and definitions that students may have found hostile.

And some in universities will resist being responsible for conduct within SU activities.

However given that the SU may not itself be able to match the new standards and that the potential for confusion amongst students is significant, carving a clear role for the SU in low level issues, support and prevention is likely to be beneficial.

Both from a free speech point of view and from a conduct perspective, we would therefore recommend that SUs take steps to review their complaints and conduct procedures in light of the above, in partnership with their university.

We would be happy to discuss further in detail (both with SUs and their university) and review any existing or proposed policies in light of the proposed approach above.