6Providers should write their regulations and procedures clearly and in straightforward language and make them accessible to students. Footnotes should be kept to a minimum and acronyms should be defined.
7Fair procedures follow the principles of “natural justice”:
- “No one should be a judge in their own cause” – decision makers must come to matters without bias or a reasonable perception of bias;
- “Hear the other side” – each party must have a fair hearing;
- “Justice delayed is justice denied” – the process must be completed without delay. In addition, decision makers must make reasonable decisions, and give reasons for their decisions.
8In disciplinary procedures, this means that:
- Students understand any allegation against them;
- The student and the person bringing the allegation have a fair opportunity to present their case and to hear and respond to what the other has said;
- Students are given reasonable notice of any hearing and are given in advance copies of all information to be considered by the decision maker;
- The burden and standard of proof are clearly explained;
- Decision makers should be free from bias or any reasonable perception of bias;
- Reasons should be given for decisions reached and any penalty imposed;
- There should be a route of appeal; and
- The investigation, any hearing, and any appeal should be carried out as quickly as possible, consistent with fairness.
9Providers should work closely with students’ unions and students to design processes or amend existing processes to ensure that they follow the principles of good practice and procedural fairness. The principles of accessibility, fairness and independence are particularly important in disciplinary procedures. A provider’s procedures should be easy to navigate and give clear information about how to access advice and support. Providers should ensure that the procedures are consistently applied, and that staff members making decisions have had no prior involvement in the case, and are properly trained and resourced. It is good practice to include trained student representatives on disciplinary panels where possible, although there must be appropriate separation between the representative on the panel, and those providing advice and support to students.
Burden of Proof
10The “burden of proof” determines whose responsibility it is to prove an issue. In a disciplinary case the burden of proof should be on the provider, that is, the provider must prove that the student has done what they are accused of doing. The student should not have to disprove the allegation. So, for example, if a student is accused of taking a mobile phone into an examination, it will be for the provider to prove that they had the phone with them during the examination.
11Sometimes the student will need to prove that they have or have not done something, or that something has happened. For example, if two students are accused of plagiarism, and one student provides evidence that the original work was theirs and the other student copied it, the other student will need to rebut that evidence. Students will also need to prove any mitigating factors that they rely on when the provider considers the penalty.
Standard of Proof
12The “standard of proof” is the level of proof required. In legal proceedings the standard of proof in criminal cases is normally “beyond reasonable doubt”, which is a very high standard. In civil cases it is normally “the balance of probabilities”, that is, it is more likely than not that something happened. Although the “balance of probabilities” standard is lower than “beyond reasonable doubt”, decisions must still be supported by evidence. The standard is higher than simply believing that something is likely to have happened.
13Section 112 of the Health and Social Care Act 2008 says that the civil standard of proof must be used in fitness to practise procedures. This standard should also be used in disciplinary cases which may lead to fitness to practise proceedings against a student.
14A provider’s regulations should explain clearly the standard of proof required in disciplinary proceedings but, if they do not, it is reasonable to assume that it is “balance of probabilities”.
Confidentiality and anonymity
15Providers should have regard to their obligations under the data protection legislation regarding sensitive personal information, or “special category data”. Information about students who are subject to disciplinary proceedings should be kept confidential as far as possible. The information should be disclosed to as few people as possible, and only to those involved in investigating or deciding the matter.
16It is not normally appropriate to keep the identity of witnesses secret during disciplinary proceedings. To do so may undermine the student’s ability to defend themselves. If the witness does not agree to the student knowing their identity it may not be appropriate to rely on their evidence.
17Disciplinary matters can be very stressful for students, and the outcomes can have serious consequences for their studies and future careers. It is therefore particularly important that the disciplinary investigations, hearings and appeals are conducted as quickly as possible, consistent with fairness. It is good practice where possible:
- to tell the student that disciplinary action is being considered as soon as possible after the event giving rise to the allegation;
- to complete the initial investigation and formal stage of the process within 60 days of the allegation being made to the student; and
- to hear any appeal within 30 days of the student making the appeal.
18Delays are likely to occur where the case is complex, the student or witnesses are not available to attend meetings or hearings, or where proceedings are put on hold because of a criminal investigation or the student’s impending assessments. In those cases, the provider should keep the student and any witnesses informed about the progress of the investigation, and when it is likely to conclude.
Promoting positive behaviours
19Providers should bring to students’ attention the expected standards of behaviour, and the consequences of breaching those standards, for example in codes of conduct or student charters.
20The Equality Act 2010 requires providers to take steps to eliminate discrimination, harassment and victimisation, to advance equality of opportunity and to foster good relations. Providers should raise awareness of the behaviour and conduct expected of students, using educational initiatives to challenge negative attitudes and stereotypes, and equip staff and students to identify and challenge unacceptable behaviour.
21It is reasonable to expect that students, their representatives and staff will act reasonably and fairly towards each other and will treat the disciplinary process with respect. It is good practice for providers to set out that expectation clearly in disciplinary procedures.
Supporting the student
22Providers should direct students to the support services available, for example the students’ union, which can provide independent support and advice. This applies to students who are going through student disciplinary procedures and to students who are providing information about someone else’s conduct that is being considered under those procedures. It is good practice to give students access to support and advice and, where it is not practicable to do so internally, providers should consider arranging for students to access support services at neighbouring institutions, partner providers or other local community services.
23Students who have access to well-trained and resourced student support services will not normally need to seek legal advice, although they may wish to in serious cases. It is good practice for providers to permit legal representation in complex disciplinary cases, or where the consequences for the student are potentially very serious.
24Providers should be aware of their duties under the Equality Act 2010 to make reasonable adjustments for disabled students. If the student says the behaviour giving rise to the disciplinary concern is related to their disability, the provider should consider carefully whether to proceed with disciplinary action, or to refer the student to support for (or fitness to) study processes.
25It is good practice to ensure that procedures are available to all students in accessible formats. Providers should consider in each case whether to make reasonable adjustments to procedures to take account of the individual needs of students. It is good practice to keep a record of any adjustments made. In disciplinary procedures, providers may need to make adjustments to the process followed in individual cases. For example, the provider may need to make adjustments for misconduct hearings, or allow a student longer to respond to allegations.
26Providers may also need to take into account a student’s disability when setting penalties. For example, if the student’s conduct was linked to an underlying mental health condition, that might mitigate the seriousness of the offence. In some cases, it might be more appropriate to refer the student to support for (or fitness to) study processes than to apply a disciplinary penalty.
CASE STUDY 1
Student with mental health difficulties
A student is accused of plagiarism in her dissertation. The student accepts that she has copied large portions of the dissertation from another source. The student has anxiety and depression and explains that she has been struggling with her workload. She says she copied the text because she was so worried about handing in the dissertation on time that she panicked.
The provider follows its academic misconduct procedure. The student is supported through the process by a students’ union adviser. The provider decides that the student has plagiarised the dissertation. In considering the range of possible penalties, the provider accepts that the student’s mental health condition has affected her judgment. It decides to award a mark of zero, but allows her an opportunity to resubmit the dissertation.
27Providers should tell students who have mental health difficulties about the specific support services available to them, for example counselling services and, where appropriate, services external to the provider. If a student appears unable to engage effectively with the student disciplinary process, the provider may suggest that the student appoints a representative. It may be appropriate to suspend the disciplinary process until the student has accessed appropriate support.
Relationship with other procedures
28It is good practice for providers to explain how their procedures relate to each other. For example:
- Students on professional courses may be subject to fitness to practise procedures as well as disciplinary procedures;
- Students who are accused of bullying or harassment, or of behaviour which may be discriminatory, may be referred to a provider’s Harassment, Discrimination and Bullying procedures;
- A complaint about the behaviour of a staff member should be referred to the provider’s staff disciplinary process;
- A student may be able to make a complaint under the provider’s student complaints procedure about a provider’s handling of a matter dealt with under its Harassment, Discrimination and Bullying procedures;
- A student’s conduct may be both academic and non-academic misconduct;
- A student who has obtained a financial advantage as a result of misconduct may be referred to the provider’s fraud procedures.
29In each case, the provider should set out clearly how the different processes will be followed and in what order. Where there is an allegation of misconduct, the provider should first check whether the matter should be considered under its disciplinary procedures or under another process.
CASE STUDY 2
Student misconduct and fitness to practise
A nursing student (student A) is accused of posting offensive and threatening messages about another student (student B) on Facebook. The provider writes to student A explaining the allegation and the process that will be followed. The letter explains that if student A is found guilty of misconduct, it is likely that he will be referred to the fitness to practise process at the end of the disciplinary process. It encloses screen shots of the messages, and a copy of a letter from student B who says the Facebook posts frightened and upset him.
Student A attends a disciplinary panel hearing and says that another student posted the messages. The panel does not believe student A’s account and decides that he is guilty of misconduct. It goes on to consider what penalty to apply, and student A puts forward some mitigating factors. The panel decides to suspend student A for one year, explaining why it has decided that lesser sanctions such as a small fine or shorter suspension are not appropriate. The provider writes to student A setting out the panel’s decision, the penalty it has applied, and the reasons for both. It tells student A that he can appeal the decision and/or the penalty, the appeal process, and the grounds for appeal. It also tells him that the School of Nursing will now consider his case.
After the hearing, the School writes to student A to explain that it is investigating his case under its fitness to practise procedures to decide whether his misconduct has impaired his fitness to practise as a nurse.
Reconsidering the same offence
30It is good practice for procedures to set out any circumstances in which an allegation of misconduct may be reconsidered (other than through a formal appeal process). For example, it may be appropriate for a provider to reconsider an allegation if new evidence emerges which, for good reason, could not have been obtained by the provider at the time. In deciding whether it is appropriate to consider an allegation for a second time, the provider should weigh up
- Whether the outcome of the first process has been called into question, and if so why;
- The length of time that has elapsed and the effect of this on the reliability of any evidence to be considered;
- The severity of the alleged offence;
- The impact on the student of undergoing a second disciplinary process;
- Whether leaving the matter unaddressed would impact on matters of fitness to practise, or on any obligations the provider has to professional or regulatory bodies in respect of the particular student’s character.
Misconduct that is identified after the student has graduated
31It is good practice for disciplinary procedures to set out the circumstances in which the provider might take action against a former student, and whether such action is time limited. For example, academic disciplinary procedures may allow the provider to withdraw a person’s research degree several years after it is awarded, if the person is found to have plagiarised their thesis.
32A provider may consider withdrawing a student’s qualification if the misconduct has given them an unfair advantage in their studies.
CASE STUDY 3
Former student accused of plagiarism
A provider discovers that a former student may have plagiarised their PhD thesis. The provider writes to the former student setting out the allegation of plagiarism, and explaining that, under its regulations, it can revoke a degree if academic misconduct is identified. It invites the former student to a meeting of a special panel to discuss the thesis. The former student agrees to attend the panel meeting.
At the meeting, the former student is given the opportunity to defend the thesis. The panel decides that the student has plagiarised the thesis and that the plagiarism is very serious. It revokes the former student’s PhD. The provider tells the student they can appeal the decision.