The Commons Women and Equalities Committee report on Attitudes towards women and girls in educational settings endorsed OfS’ development of a new registration condition on harassment and sexual misconduct.
Among other things, the proposed new condition would require institutions to create and publish a single document explaining their approach to harassment and sexual misconduct, including arrangements for handling the reporting of incidents and conducting investigations.
OfS has also proposed that the single document would need to explain “how the provider ensures that investigations undertaken and decisions made… are credible, fair, and otherwise reflect established principles of natural justice”.
Beyond that the consultation does not focus especially on investigations and hearings – but the need to adopt procedures which reflect the principles of natural justice is widely recognised, and features in the well-known Universities UK guidance on handling allegations of sexual misconduct.
Importantly, a recent High Court judgment, AB v XYZ, has highlighted how legal claims may be brought against providers by alleged student perpetrators, claiming that disciplinary procedures have failed to comply with the standards of natural justice.
The case shows that employing unfair procedures may ultimately mean that disciplinary findings and sanctions may be held to be of no effect, and effectively quashed by the courts.
In AB v XYZ, the claimant had been expelled following disciplinary proceedings concerning serious sexual misconduct allegations against him by a student from a different university. In 2020, the claimant had brought proceedings against the university on the basis that he had not been permitted legal representation at his disciplinary hearing.
The court found that it was implied in his student contract that disciplinary processes would comply with the principles of natural justice. In the circumstances of the case, the court decided that it had been contrary to natural justice, and therefore unlawful, not to permit the claimant to have legal representation at his disciplinary hearing.
The outcome of the 2020 judgment was that the court ordered a further disciplinary hearing to be held, with the claimant permitted legal representation. However, the complainant felt unable to attend the second disciplinary hearing. The hearing proceeded without her.
Nonetheless, the allegations were upheld on the basis of her “hearsay” evidence (i.e. evidence in her witness statements but about which she could not be questioned at the hearing). The claimant issued further proceedings and the court again found in his favour.
The claimant’s evidence fundamentally contradicted the complainant’s, and the court considered that it was essential as a matter of fairness for him to have an opportunity to test that evidence. The court also found that it had been unfair and unreasonable to admit the hearsay evidence, and the disciplinary panel had given disproportionate weight to it.
Recent regulatory, policy and legal developments therefore underline the importance of natural justice – to both parties – in student disciplinary procedures concerning sexual misconduct.
Institutions will of course need to consider what “fairness” and “natural justice” mean in the circumstances of any particular case. AB v XYZ underlines that these are flexible concepts; that there is no “one-size-fits-all” answer; and that general public law principles will need to be considered. Public law lawyers are familiar with the need to tailor processes and procedures to ensure that fairness reflects specific circumstances.
Issues which may need careful consideration in any given case include the need to pay close attention to existing policies and procedures. Departing from these may in itself constitute unfairness. On the other hand, circumstances may arise where procedures need to be adapted or exceptions made, and rigidly applying policies without considering exceptions may also be unfair or otherwise unreasonable.
There is also a need to consider gathering relevant evidence at an early stage, as soon as an allegation is made, and potentially before a formal investigation is opened. For example, social media posts could be deleted and CCTV images may need to be saved. Failure to do this may be criticised by the subject of the investigation, as much as it may also make proving allegations more difficult.
Clearly defining the scope of any investigation is important too. As the OIA’s Good Practice Framework explains, it is essential to be clear about exactly what is being investigated to ensure that the investigator, complainant and subject understand the purpose and scope of the investigation and the possible outcomes.
The need to provide the subject with copies of the evidence gathered and the investigation report, and information about the next steps in the process is, also matters. Some details may not be necessary for the subject to see (for example, very sensitive information about the complainant). However, the guiding principle is that information will need to be shared where it is necessary for the purposes of investigating the allegations and for the subject to understand what is alleged and to respond.
As highlighted in AB v XYZ, the question of whether the parties should be permitted legal representation, and whether hearsay evidence should be admitted, should also be a consideration. The two issues may be related. For example, in AB v XYZ, the court suggested that, where a complainant is reluctant to provide evidence at a disciplinary hearing, it may be necessary to offer them their own legal representative.
It’s also important to consider whether and how to provide a disciplinary panel with evidence of previous misconduct by the subject. Previous misconduct will not normally be relevant to whether the subject has committed a further offence (as recognised by the OIA’s Good Practice Framework). However, where the evidence is relevant, careful thought will need to be given to what is shared with decision makers to ensure it is not prejudicial to a fair outcome. It is more likely to be appropriate for decision makers to know about previous misconduct when considering the appropriate sanction.
It’s also crucial that disciplinary hearings are conducted fairly. The complainant and subject should both have a fair opportunity to present their case and respond to what the other has said. The burden and standard of proof should be explained. Decision makers should be free from bias or any reasonable perception of bias (for example, it may be necessary to maintain a boundary between investigators and decision makers). Reasons for decisions should be explained, and there should be a route of appeal.
Ultimately, the principles of natural justice must be considered and followed in every case. This reflects the important consequences that student disciplinary procedures may have for both the complainant and subject, and institutions’ obligations to safeguard the welfare of both parties.
Additionally, fair procedures are fundamental to the robustness, and perceived robustness, of disciplinary proceedings. In the long run, following robust procedures is likely only to support institutions’ efforts to tackle sexual misconduct.