Fair processes mean fair outcomes

“Procedural fairness and regularity are of the indispensable essence of liberty.”  

Robert H Jackson, the distinguished American jurist, was referring to the actions of governments in implementing and enforcing laws. But even in the microcosmic environment of higher education, we should not underestimate how important procedural fairness is to fair procedures.

The term procedural fairness is often used interchangeably with the term “natural justice”, which is generally associated with Court proceedings. The two core principles of natural justice are:

• “No one should be a judge in their own cause” – decision makers must come to matters without bias or a reasonable perception of bias; and
• “Hear the other side” – each party must have a fair hearing;

A third principle is often cited: “Justice delayed is justice denied” – the process must be completed without delay.

An addition factor crucial to fair decision making is that the decision makers must make reasonable decisions, and give reasons for their decisions.

Putting it into practice

How do you translate all of this into the higher education environment? By developing processes that are accessible, fair, clear, proportionate, timely, appropriately independent and confidential, and that enable the HE provider to promote positive behaviour and capture learning. These principles apply to any procedures but are crucial in the disciplinary context, where the consequences for the student can be very serious.

Over the years, we have seen a wide range of complaints involving misconduct issues. These include:

• The student who was fined for smoking in university accommodation even though he didn’t smoke and didn’t know which of his 12 first year housemates had been smoking.
• The student who was fined for urinating on campus in breach of “general regulations”, but was not told which regulation applied to him.
• The student who had returned to his home country and joined a disciplinary hearing by Skype, but was unable to communicate with his representative who was present at the hearing.
• The student who did not contest an accusation of academic misconduct, but ended up with a more severe penalty than her friends who did contest the accusations, when their cases went to a panel hearing.
• The student with a visual impairment who learned revision materials by rote, and was accused of plagiarism when she reproduced them verbatim in an exam.
• The student who was accused of collusion with another student, but was found to have copied the other student’s work without a hearing because the panel heard the other student’s case first.

A good dose of “procedural fairness and regularity” would have prevented many of those cases resulting in complaints!

There are some cornerstones that go a long way towards ensuring that the process is objectively fair. These are things like: making sure that the student understands exactly what they are accused of, sees all the evidence that the decision maker has, and has a proper opportunity to put their side of the story; the decision maker is seen to be independent; there are no unnecessary delays to the process; and there is a route of appeal.

Access

The procedures must also be accessible. This doesn’t just mean that they should be easy to find, written in clear and straightforward language, and available in accessible formats. It means that there is no ambiguity about the behaviour or actions that are likely to constitute misconduct, and concepts such as the burden and standard of proof are clearly explained.  

Accessibility also means that students needing help and advice can find it easily, through student advice services, students’ unions, or other representation. We are firm believers in the value of a well-resourced student advice service to students and to HE providers: student advisers are often best placed to support and advise students because they are familiar with the provider’s procedures, and can sometimes de-escalate what can be highly charged situations.

Disciplinary processes can be immensely stressful for students, whether they are a witness, someone who is making a complaint about another student’s behaviour, or the subject of the process themselves. Many of those students may be vulnerable – perhaps because of the nature of the complaint they are making, or because of mental health difficulties. Those students require well-organised, sensitive and tailored pastoral support to help them navigate the process. This means making sure they understand the process itself, and how it relates to any other related procedures such as fitness to practise processes, and making sure they have access to appropriate advice.

A key part of this is making arrangements to accommodate the students’ individual needs so that they can attend hearings – for example, allowing students to bring supporters or representatives to a hearing, or to attend via video link; delaying a hearing if the student has good reason for not being able to attend; allowing a translator or sign language interpreter.

Training

It is equally important that decision makers have proper training, resources and support to carry out this weighty role. Where possible, we encourage providers to include student representatives on disciplinary panels, but they too must be properly trained, and there must, of course, be an appropriate separation between the decision makers and those providing advice and support to students.

Procedures must not only be fair, they must be seen to be fair. So, decision makers must come to the matter afresh. If a decision maker is someone the student has made a complaint about or has a close relationship with someone who is making an allegation about the student, then the student will have a reasonable perception that the person is biased against them, however objective the person might try to be. This is true in any context but is essential in disciplinary procedures. For the same reason, the role of the investigator should be separate from the role of decision maker so that there is no suggestion that the decision maker has prejudged the matter.

This month we publish for consultation a new section of our Good Practice Framework, on Disciplinary procedures. It sets out what we believe are useful and common-sense principles and guidance for academic and non-academic student misconduct procedures. As with the previous sections of the Framework, the consultation responses will be a key part of the drafting process, and we encourage anyone with an interest in this area to contribute through the consultation.