In an article titled “Essay mills: how to treat a student cheat” recently published in The Times, author Edward Fennell argued that penalties for plagiarism tend to be down to a tutor’s whim and that maybe it was time to find a fairer way.
No one disputes that cheating cannot be tolerated. However, there appears to be a lack of rigour and consistency in the way that these cases are handled, which is not in keeping with a higher education system that boasts it is among the best in the world.
The complaints that the Office for the Independent Adjudicator sees about the outcome of disciplinary processes support that conclusion. We have pulled together evidence from the complaints that come to us, our good practice outreach, and our work with sector bodies to help HE providers develop the rigour and consistency that underpin fair processes.
Today we published the new disciplinary procedures section of our Good Practice Framework following consultation over the summer. The section has been eagerly anticipated and this reflects a degree of anxiety in the sector around how best to deal with what can be complex, controversial and highly sensitive cases.
The question of legal representation
Higher education providers dealing with disciplinary matters are not acting as courts and their processes do not need to have the formality of legal proceedings. But disciplinary processes can be highly stressful and the consequences for students are often serious. Care needs to be taken to ensure that students are well supported and have a proper opportunity to put their case.
For some students, and in some cases, we think this means being able to bring legal representation to disciplinary hearings.
In most cases, and where they are available, well-trained student advisers in independent and well-resourced student services will be best placed to represent and support students through these processes. They will be familiar with the procedures and practices of the provider. Small or non-traditional providers may not have students’ unions or support services that can provide this sort of representation. Some students require a level of support that student advisers cannot provide, have legally complex cases, or are facing very severe consequences. Providers need to have the discretion to allow those students, who might otherwise be disadvantaged, to access external representation to ensure that they have a fair hearing.
So the disciplinary procedures section says that it is good practice for procedures to allow for legal representation, including representation at a hearing, where there are good reasons.
This approach is consistent with that taken by the courts to employment disciplinary processes. Case law indicates that the courts are likely to conclude that a public sector employee has a right to legal representation during internal disciplinary processes if their employer’s decision will have the effect of preventing them from working in their chosen profession. This is to preserve their Article 6 human right to a fair hearing. The principle applies to public sector employment, although it may be applied by extension to the private sector. The employer’s decision must go further than just making it difficult for the employee to work in their profession.
That said, the involvement of a legal representative should not be permitted to change the dynamic of a hearing. These are not legal proceedings and neither students nor their representatives should be allowed to cross examine witnesses. Questions should normally be put to witnesses through the chair of the disciplinary panel.
For their part, legal representatives have to recognise the difference between these internal processes and legal processes, to focus on the critical issues, and not to try to bamboozle the panel with technical legal arguments that do not often translate well into the student environment.
When multiple students are involved
Another vexed question is how to deal with the situation where one student makes a complaint about the behaviour of another student, or where an allegation is made about the behaviour of several students.
The starting point for these cases is that the provider owes the same duties and obligations to each of its students and needs to balance the interests of each of them when deciding what to do. This means supporting all students through the process, and giving each of them the opportunity to make their case and, where there is conflicting evidence, to challenge the evidence of the other.
Inevitably there will be difficult data protection issues to grapple with. We think that if one student has made a complaint about another, and the provider has taken disciplinary action against them, then at the conclusion of that process the student who complained should be given some resolution to their complaint.
If the other student’s behaviour is found to have had an adverse impact on the student who complained then the provider should offer them a remedy for that impact. It may not be possible to share with the student who made the complaint the outcome of the disciplinary process, but if they had a valid complaint then they deserve a remedy.
What about staff members?
The situation can be even more complicated and sensitive when a student makes a complaint about a staff member. Staff disciplinary processes are outside our remit, but not student complaints about how providers have dealt with complaints about their staff.
It’s important to bear in mind that making a complaint about a staff member can be particularly stressful for a student. The power imbalance can mean that students wait until they have finished their studies, or until they can no longer cope with the behaviour or its consequences. In those cases providers may need to be flexible when applying time limits for bringing complaints.
Complaints about staff members should normally be investigated under the provider’s staff disciplinary process, and staff members will often have union representation through that process. In these complex situations it is often difficult to keep the process moving but it is important to do so. The complaining student’s stress is unlikely to dissipate until their complaint is properly resolved, and that should happen as quickly as possible.
The outcome of the disciplinary process will normally be confidential to the staff member. Sometimes, the staff member might agree to information being shared with the student who made the complaint. In any case the student making the complaint should be given some resolution to their complaint. If the provider finds that the staff member’s behaviour has had an adverse impact on the student who complained, then the provider should offer them a remedy for that impact.
Expectations and consequences
It is beyond us to attempt to set out an exhaustive list of what might constitute academic and non-academic misconduct. Different providers have different ideas about what might be misconduct and it is up to each provider to set the expectations it has for its students.
Of course those expectations need to be explained clearly – and often – to students, along with the potential consequences for falling below them. Students are given an enormous quantity of documentation when they begin their studies so it is a challenge to ensure that they understand what is expected of them from the outset. Some providers use their intranet homepage to effectively communicate important messages like this.
It is equally important to make sure that students understand how procedures might interact with each other. Most obviously, for students on professional courses, a discipline matter might lead to fitness to practise concerns.
Another key ingredient in a fair process is a proportionate system of penalties. Many providers set out possible penalties in a table, with examples of when each penalty might apply. This is helpful to the student who is going through the disciplinary process, to student advisers supporting them through it, and to decision makers who have to select an appropriate penalty.
Decision makers need to give reasons for their decision about why the student’s behaviour was misconduct, how serious that misconduct was, and why they have chosen a particular penalty. They should normally go through the available penalties starting with the least severe explaining why the lesser penalties are not appropriate.
Drafting this guidance has been a challenging and informative exercise and the consultation responses were illuminating and helpful. We hope the finished product will be a useful addition to the Good Practice Framework.