Recent media attention has highlighted problems in complaints processes for addressing sexual misconduct in higher education.
These media stories have highlighted issues within both student-student as well as staff-student complaints processes, and it is clear that urgent work is needed to address both.
There are particular difficulties arising within staff-student complaints processes. Different complaints frameworks are implicated, which reflect different levels of protections owed by higher education institutions (HEIs) to their staff as employees compared to those owed to their students.
In line with media reports, our study Silencing Students found that institutional responses to complaints of staff sexual misconduct involved HEIs “making it up as they go along”. When students attempted to report their experiences they found that there was no documented process being followed or communicated with them, and this led to inadequate responses, a lack of just outcomes, and serious adverse consequences for the complainants.
Clearly, one of the key actions that needs to be taken in order to encourage students to report sexual misconduct is to make the reporting and complaints process more manageable and fairer to all parties. So we have written “Sector Guidance to Address Staff Sexual Misconduct in UK Higher Education”, as one part of a wider set of institution-wide actions that need to be taken as part of a whole-institution response to sexual violence.
Aligning protections and privileges
The central problem that the guidance seeks to address is that existing student complaints and staff disciplinary procedures are separate processes which fail to offer similar protections and privileges to the student complainant and the responding staff member and, as a result, students are often excluded from the process purporting to resolve their complaint.
We suggest that this exclusion arises because current disciplinary processes are modelled on the criminal justice system. In order to address this issue, we suggest that changes could be made to staff disciplinary processes to follow a process more akin to civil justice, thus ensuring that the process accords equal rights to complainants and respondents. This will allow HEIs to move towards a fairer process that is not open to legal challenges under the Equality Act.
While there are several reasons why this discriminatory process exists, we focus here on one: the inconsistencies between student complaints processes and staff disciplinary processes. While student complaints processes follow (in England) guidance from the Office for the Independent Adjudicator for Higher Education (OIA), staff disciplinary processes follow ACAS guidance.
The OIA Good Practice Framework has one paragraph on non-academic student complaints towards staff members, paragraph 108, which states that:
When a student makes a complaint about a staff member that complaint should normally be referred to the provider’s staff disciplinary process. The outcome of the process will normally be confidential to the staff member, although the staff member may consent to information being shared with the student who made the complaint. Nevertheless, the student making the complaint should be given some resolution to their complaint. If the staff member’s behaviour is found to have had an adverse impact on the student who made the complaint then the provider should offer them a remedy for that impact.
This statement gives very little detail about the student’s rights within such a process. It relegates the student complainant to the status of “witness” to the institution’s disciplinary process against the member of staff. This means that students suffer various disadvantages during the process, such as no right of access to evidence; no right to call witnesses or demand that any be interviewed; no right to know the outcome; and no right to oppose their complaint being dismissed or resolved by settlement between the HEI and the responding staff member, among others.
This problem also exists in student-student disciplinary cases but it tends to be exaggerated within staff-student cases due to lack of dialogue between HR and student services, as well as due to the differences in status and power between staff and students.
Nor does current ACAS guidance offer any detail as to the rights of complainants who are not employees. As our research in Silencing Students shows, the lack of rights during the process, as well as the lack of closure through outcomes not being shared with complainants, was one of the factors that meant that complaints processes were extremely distressing to interviewees. Therefore, as we note in the guidance:
In a society where vastly more sexual misconduct complaints are made by women against men than vice versa, a process for investigating sexual misconduct complaints which gives those responding more rights than those complaining might well be thought to place women as a group at a particular disadvantage and so to amount to indirect discrimination, in breach of the Equality Act 2010. HEIs also owe a public sector equality duty which requires them to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between people from protected groups and those that are not (Equality Act 2010, section 149). It is hard to see how an HEI can be said to have paid due regard to these principles if it fails to provide a fair process for handling staff sexual misconduct complaints (p. 4-5)
In response, we have suggested that HEIs modify their existing disciplinary processes to provide similar protections and privileges in the process to the complainant and the responding staff member. The two key principles that the guidance puts forward are:
- Where staff disciplinary procedures are used to address student complaints, HEIs must modify these to ensure a fair process for student complainants
- Student complainants and responding staff members must be accorded equal rights in the complaints process
What this means in practice is that the complaints process must provide both the student complainant and responding staff member equal access to evidence (including relevant sections of the investigation report), equal opportunity to put their case (including submission of evidence and attendance in person or via video link at any formal hearings), equal opportunity to challenge the evidence of the other, and to request an appeal or review, which should have full autonomy to strengthen or overturn previous findings.
This is what OIA requires of HEIs handling student complaints of student sexual misconduct, and there is no legitimate reason for HEIs to treat complaints of staff sexual misconduct differently – especially as they are more often liable for the unlawful actions of their staff.
In addition, if the HEI decides to resolve the complaint by way of a settlement, this must be agreed by all parties rather than being solely between the institution and the staff member, as currently seems to happen. We urge that no settlement be used to resolve a complaint without the student complainant approving this mechanism, after receiving independent legal advice, and being made a party to the agreement, with rights of enforcement.
Sharing the outcome?
A contentious point that was discussed during the consultation process for devising this guidance was what aspects of the outcome of the complaints process should be shared with the complainant. We argue that providing complainants with a full resolution to their complaint should include informing them of disciplinary action taken against the staff member, as well as ensuring they can speak publicly about upheld outcomes.
Evidence from Silencing Students demonstrates that if complainants are not able to speak publicly about outcomes, their reputation and careers risk being damaged by slander from the responding staff member. Such retaliation can amount to victimisation contrary to the Equality Act. In relation to disciplinary actions, in sexual misconduct cases the disciplinary sanctions applied may be relevant to the remedy for the complainant.
The complainant also needs to be informed of the ways in which the environment will be adapted and changed to uphold the health and safety policy of the HEI, both for themselves and for the wider HEI community – and this may involve being informed of disciplinary sanctions taken against the responding staff member. Indeed, the Equality and Human Rights Commission’s Technical Guidance on sexual harassment has a similar recommendation, noting that where possible, employers should review “contracts, policies, procedures and privacy notices to ensure that they inform workers when the outcome of complaints and disciplinary proceedings may be disclosed”.
A disclosure without a complaint
Finally, one of the most difficult issues to deal with in relation to sexual misconduct is where disclosures are made, or there is informal knowledge of sexual misconduct occurring, but no staff or students feel safe enough or feel able to make a formal complaint.
To address this, we have released a briefing note that accompanies the guidance, asking whether an HEI can pro-actively investigate and speak to potential witnesses in the absence of any formal complaint or complainant. We argue that where institutions have received sufficient information to put them on notice of a reasonably foreseeable risk they should take proactive steps. Such steps could include asking all students and staff in the department if they wish to raise informal or third-party concerns, and if sufficient evidence is received, opening a formal investigation.
A similar process is already being implemented by UCL as “environmental investigations”. This is a crucial step to shift the burden of risk from the individual complainant to the institution, which seems only right since sexual misconduct affects the community as well as the individual survivor, and the HEI owes a duty to provide a safe working and learning environment to all its students and staff.
While this guidance is framed in relation to staff-student sexual misconduct, it may be relevant to apply these principles to discrimination complaints in higher education more widely, including staff-staff. For example, the recent EHRC report into racial discrimination in higher education raises complaints processes as an area requiring urgent action.
While we have not framed the guidance as being applicable more widely, nevertheless we hope that it will open up and help contribute to discussions of ways in which complaints, disciplinary and investigation processes need to ensure fair outcomes for students and staff for a wide range of discrimination cases.