DISCIPLINARY PROCEDURES - Part B: Non-academic disciplinary procedures

What is non-academic misconduct?

94It is up to individual providers to decide what types of behaviour constitute non-academic misconduct. Providers should ensure that their definitions are clear, and communicated clearly to students. Examples could include:

• Antisocial behaviour;
• Inappropriate, abusive or threatening behaviour, including on social media;
• Compromising the safety of and/or wellbeing of staff, other students, or visitors;
• Sexual misconduct;
• Violence, harassment and hate crimes;
• Behaviour likely to bring the provider into disrepute, such as disruptive behaviour in the community;
• Internet access abuse, such as visiting inappropriate websites, uploading/downloading inappropriate content, propagation of computer viruses;
• Disruptive behaviour on the provider’s premises, such as setting off fire alarms or obstructing access to buildings or rooms;
• Damage to the provider’s property or abuse of its facilities;
• Causing a health or safety concern;
• Relying on forged, falsified or fraudulent documentation, and other forms of deception that are intended to gain an advantage, for example submitting fraudulent mitigating circumstances claims or falsifying evidence in support of mitigating circumstances claims (the last may also be considered an academic disciplinary matter);
• Other behaviour which may also constitute a criminal offence.

95Procedures should clearly define each type of offence, and set out the potential penalties that might be applied and the provider’s approach to considering mitigating factors.

96A provider’s non-academic disciplinary procedures are intended to address misconduct by students rather than to resolve disputes between individuals. Generally, a provider may take disciplinary action against one of its students in connection with its facilities or services, or student activities. This may include:

• Misconduct that interferes with the academic or administrative activities of the provider;
• Misconduct in or near any premises managed by the provider; and
• Misconduct that has an impact on the interests and reputation of the provider.

97A provider may take disciplinary action where the behaviour has affected:

• The provider itself;
• A student or employee of the provider;
• Others visiting, working or studying at the provider; or
• A member of the public.

98A provider may also take disciplinary action in response to misconduct which:

• Happens during off-campus activities such as placements and field trips;
• Happens whilst studying at partner organisations, such as associate schools;
• Affects the provider’s reputation in the local community or more widely; or
• Happens on social media.

Harassment, discrimination and bullying

99Providers should have procedures in place to deal with allegations of harassment, discrimination and bullying. Providers have obligations under the Equality Act 2010 and other legislation to ensure that staff, students and others engaging with the provider are protected from discrimination, harassment and victimisation.

100The Protection from Harassment Act 1997 states that harassment includes causing a person alarm or distress. The Act states that harassment consists of a course of conduct (on at least two occasions) only “if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other”.

101Providers may consider allegations of harassment, discrimination and bullying under their non-academic disciplinary procedure, or a separate procedure. In either case, the procedure should clearly define what the provider means by harassment, discrimination and bullying and give examples of the types of behaviour that fall under each definition. Some examples are:

• Behaviour that is unwelcome, uninvited and causes a detrimental effect;
• Verbal or physical aggression;
• Sending abusive or threatening messages on social media;
• Using discriminatory language;
• Sexual or physical abuse or assault.

102Providers should take care to ensure that students understand their options when they report behaviour that may amount to a criminal offence, and support the student whatever action they choose to take. Options available to the student might include reporting the matter to the police, asking the provider to take disciplinary action, or taking no further action. If the student decides to report the matter to the police, the provider should help and support the student to do so. The provider should itself consider reporting the incident(s) to the police where the safety of students or staff may be at risk.

103In designing procedures to deal with harassment, discrimination and bullying, providers should consider the following:

• The recipient’s perception of the behaviour in question is of considerable importance;
• Behaviour does not have to be directed against a person or be intended, for it to amount to harassment;
• All students (the accuser and the accused) should be signposted to sources of advice and support from appropriately trained staff.

Changing the culture

104In October 2016, UUK published its “Changing the culture: Report of the Universities UK Taskforce examining violence against women, harassment and hate crime affecting university students.”[3] The report summarises the evidence considered by the Taskforce during its review and highlights points of good practice and recommendations for how universities can develop their practices/respond to issues more effectively in future. The report highlights the importance of having:

• Ongoing engagement with students;
• An institution-wide approach to promoting positive behaviour and ensuring appropriate support is in place for students;
• Visible and accessible reporting mechanisms for students;
• Appropriately trained staff and contact with specialist partners.

105Providers may find it useful to refer to this guidance when considering their approach to student disciplinary cases.

Cases involving allegations by a student against another student or staff member

106When a student has complained to their provider about the behaviour of another student, the provider owes the same duties and obligations to each of the students involved and needs to balance the interests of each student when considering what action to take. Providers should take all reasonable steps to ensure that they treat each student fairly. It is likely that the evidence of the student making the allegation will be a key part of disciplinary proceedings against the other student and care must be taken to ensure that each of them is treated fairly, has a proper opportunity to put their case, and a proper opportunity to challenge the evidence of the other. It is not normally appropriate for one student to be given the opportunity to cross examine the other and questions should usually be asked through the disciplinary panel rather than directly, unless the student is represented.

107At the conclusion of the disciplinary process the student who made the complaint 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 made the complaint then the provider should offer them a remedy for that impact.

108When 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.

Initial considerations and preliminary investigation

109Many providers give named staff members the power to take decisions on disciplinary cases at a local level or to refer a case for full formal consideration. For example, a hall warden may be able to consider minor disciplinary issues arising in student accommodation. In this way, straightforward minor cases can be dealt with without the need for formal consideration. For example, the student might admit a minor offence, or the allegation might be found to have been made in error. Such an approach gives providers the flexibility to deal with cases in a prompt and proportionate way. However, it is not good practice to consider a disciplinary matter on an entirely informal basis without keeping any records.

110In all cases, the student must be told in writing at the beginning of the process about the allegations against them and how their behaviour is considered to have breached expected standards. The student should be given any available supporting evidence. The staff member carrying out this initial investigation should not have been involved in making the allegation against the student. The student should be given a reasonable opportunity to respond to the allegation and supporting evidence before a decision is made about whether they have committed the offence. If the provider brings additional or alternative charges against the student during the disciplinary process, it is important that the student is told about the new or amended allegations and offered the opportunity to respond.

111It is good practice to tell the student that concerns have been raised about their behaviour even if the provider decides to take no disciplinary action.

112Mediation or conciliation can be particularly helpful in resolving disputes involving students at an early stage, provided the students agree to try it. It will not be appropriate for the resolution of all disciplinary matters.

113Where a student admits to a minor offence, their admission should be taken into account when considering what penalty to apply. It is good practice to ensure that students are fully aware of the consequences of agreeing to a penalty at this stage. For example, the student should be told whether the offence will be recorded on their student record, and whether it will be taken into account in future disciplinary or fitness to practise proceedings.

114Following any preliminary investigation, the student should be given a written outcome setting out the decision reached. If the investigator has concluded that the student’s behaviour was misconduct, the student should have a right to appeal against a decision reached or any penalty set at this stage. Where local resolution is not appropriate or possible and a formal investigation is needed, the student should be told what will happen next. Providers should signpost students to sources of advice and support, for example from the students’ union or the student advice centre. Where this stage is conducted at departmental level the provider should have a process for ensuring that cases are treated consistently across all departments.

When immediate action is required during a disciplinary investigation

115Providers have a duty of care towards all staff and students. Some disciplinary matters may need the provider to take particularly swift action. These may include, but are not limited to:

• Cases involving a threat of serious harm to the student and/or others;
• Cases where the student’s mental health is at risk or where the student displays significant distress;
• Issues of a highly sensitive nature;
• Cases involving an ongoing threat of serious disruption to other students or to the provider’s activities.

116Disciplinary procedures should set out what action a provider can take and in what circumstances. Examples might be limiting access to the provider’s services, temporary exclusion from accommodation, or a period of temporary suspension.

117Taking this sort of action does not indicate that the provider has concluded the student is guilty of misconduct; it is a precautionary measure while a full investigation is completed. This should be made clear in disciplinary procedures and to the individual student.

118Where the provider intends to exclude the student from their accommodation, it will need to consider the student’s rights under the legislation protecting tenants and licensees, and the relevant codes of practice.[4] It is good practice to ensure that, when it is necessary to remove a student from their accommodation, suitable alternative accommodation is in place.

119Suspension should be a last resort, when the risk of harm to others (or the student themselves) outweighs the potential disadvantage to the student. The provider should consider other steps that it might take so that the student’s studies are not disrupted unnecessarily. The provider should consider the effects of a suspension on a student approaching assessments, or where time limits apply to the student’s course of study or visa arrangements.

120The provider should explain to the student why they are being suspended, and for how long. The student should be able to challenge the decision to suspend them. The provider should review the suspension periodically, even if the student does not challenge it, particularly if it is necessary to extend the period of suspension beyond the initial period.

121It can be difficult to manage complaints that involve allegations made by one student against another. Providers owe the same duties and obligations to all students involved and need to balance the interests of each student when considering what action to take. Providers should take all reasonable steps to ensure that they treat each student fairly. It may be possible to take steps to safeguard the student making the allegation without suspending the other student, for example, measures to ensure that students are not in the same teaching groups or accommodation, and access facilities at different times.

122If the suspended student successfully challenges the suspension, it may be necessary to notify the student or staff member who has made the allegation that the student has been permitted to return to their accommodation or department.

Behaviour that amounts to a criminal offence

123Behaviour that may amount to a criminal offence is usually best dealt with by the police, Crown Prosecution Service, and the criminal courts in the first instance. Criminal behaviour may also be a breach of the provider’s disciplinary procedures and a provider may reasonably take action against a student whether or not they have been convicted of a criminal offence. It is not reasonable for a provider to decline to take disciplinary action simply because the allegation made might also be a criminal offence.

124Providers should take care to ensure that students understand their options when they report behaviour that may amount to a criminal offence, and support the student whatever action they choose to take. The student’s options might include reporting the matter to the police, asking the provider to take disciplinary action, or taking no further action. If a student reports a sexual assault to the provider, it should give the student information about the nearest sexual assault referral centre. If the student decides to report the matter to the police, the provider should help and support them to do so.

125If the police or courts are involved, providers should normally await the outcome of those proceedings before conducting an internal investigation. The provider should keep in touch with the students involved, and with the police during this process. The provider may need to take some form of temporary action against the accused student, in order to protect other students and staff members. For example, a student may be suspended while a full investigation is conducted. Providers should consider each case individually, weighing up the risk to others against the potential disadvantage to the student of a potentially lengthy suspension while the criminal investigation proceeds.

126Where a student is acquitted of a criminal offence, or where the criminal investigation has been dropped, the provider may still take action against them under its disciplinary procedures.  The provider should specify precisely how the student’s behaviour is said to have breached its disciplinary policy, and what action it intends to take.

127If the student is convicted of a criminal offence, the provider may still take action against them. If the student has been imprisoned then the provider will need to consider whether it is possible for the student to continue with their studies, and whether disciplinary action is necessary or proportionate.

128It is not normally appropriate to apply an academic penalty, such as withholding or withdrawing a degree, for a disciplinary offence that is unconnected with the student’s academic studies.

129Disciplinary procedures should give guidance on how staff should support those accused of serious crimes as well as those making the allegations. It is good practice for staff members to record details of any initial allegation and what they told the student. This can be particularly important when the alleged misconduct may also be a criminal offence. The record will also be available to those investigating a formal complaint at a later stage.

130UUK and Pinsent Masons have produced guidance for higher education providers on “How to handle alleged student misconduct which may also constitute a criminal offence.”[5] Providers may find it useful to refer to this guidance when considering their approach to disciplinary cases.

The formal stage

131At the formal stage disciplinary matters are usually considered centrally by the provider.

132The procedures followed should be proportionate to the nature and complexity of the issues raised. It is good practice for a disciplinary procedure to set out clearly:

• Who the procedures apply to, and whether and in what circumstances the provider can take action against a former student;
• What process the formal stage will follow;
• Whether or in what circumstances the staff member investigating the allegation will meet with the student (such meetings are good practice in complex or serious cases);
• The circumstances in which a hearing or meeting will be held or a panel convened;
• Who will sit on the panel;
• The process to be followed at any hearing or meeting; and
• Whether there will be a separate opportunity for the student to present additional representations about the penalty, if a finding of misconduct is made.

Formal stage investigations

133The formal investigation should be carried out by a member of staff who has had no previous involvement in the case. It will not normally be appropriate to keep the name of the staff member investigating the allegation confidential. That would lack transparency and may undermine the student’s confidence in the process. Staff members charged with investigating misconduct allegations should be properly trained, resourced and supported.

134It is good practice for the investigator to meet with the student and they should do so at the earliest opportunity. The student should be given notice of the meeting and provided with sufficient information to allow them to respond to the allegation(s), and a copy of the relevant procedure at that time. The student should also be told how to access advice and support, for example from the students’ union, and who can accompany them to the meeting. It is good practice to provide the student with a note of the meeting but it will not normally need to be a full transcript.

135It is essential to be clear about exactly what is being investigated to ensure that both the investigator and student understand the purpose and scope of the investigation and the possible outcomes. The investigator of the case may talk to staff or other students and consider documents and other evidence. If the allegation has been made by another student, it is good practice for the investigator to also meet with the student making the allegation promptly in order to clarify the facts and explain the remit of the investigation and to answer any questions.

136The investigator should produce a report based on their investigations which outlines the process followed, the information gathered, and their conclusions. The student or their representative should receive copies of the information obtained during the investigation, a copy of the investigation report and information about the next steps in the process. The student should also be made aware of who they can contact with any queries about the progress of the case.

137The investigator may refer their report to another senior member(s) of staff for a decision to be agreed, or to a disciplinary panel.

Disciplinary hearings or panel meetings

138Hearings or meetings should always be held in cases where the allegations against the student are serious, or where the potential consequences for the student are severe. Hearings or meetings should also be held when there are questions of fact to be decided.

139Panel members should be properly trained. It is good practice to include student representation on the panel where possible, although there must be appropriate separation between the representative on the panel, and those providing advice and support to students.

140The procedures should set out:

• Who can sit on a panel and who can chair it;
• That the student can be accompanied and/or be represented and by whom;
• Whether the student is permitted to attend the hearing or meeting by alternative means (for example by video call);
• Whether the hearing or meeting will proceed if the student chooses not to or is unable to attend;
• The process for rearranging the date of the hearing or meeting if the student or other witness is unable to attend for good reason;
• Whether the student can be questioned directly during the hearing or meeting;
• That the student can call witnesses;
• Whether other witnesses will be called and whether the student can ask them questions directly or through the panel’s chair;
• Whether any witnesses can attend by alternative means (for example by video call);
• Who may attend the hearing or meeting and in what capacity, and whether the panel can seek support from legal advisers or other external people.

141The hearing or meeting should be arranged promptly, and the student should be given adequate notice of it. This includes informing the student of the purpose of the meeting or hearing; of their right to attend; how to access advice and support; their right to be accompanied and/or represented and what role any representative or companion is permitted to play in the hearing or meeting. If the student is permitted to attend the hearing or meeting by alternative means (for example by video call) the provider should explain how it will arrange and facilitate this.

142It is essential to provide the student in advance with information about who will be on the panel and a copy of the information to be considered.

143Fairness requires panels to be free of any bias or any reasonable perception of bias. In the context of a disciplinary process, a perception of bias might arise where the student or the person making the allegation has a close relationship with a panel member, the student has made a formal complaint about a panel member, or a panel member has been involved in previous misconduct allegations against the student. The cultural mix or diversity of the panel may be a relevant consideration in some disciplinary cases. The provider needs to consider the constitution of panels and take steps to ensure that those responsible for reaching a decision come to the matter afresh and are properly trained, resourced and supported.

144If a provider finds it difficult to convene a panel of people who have no previous involvement with the student, it can consider:

• Using staff from other departments;
• Using staff from a neighbouring provider; or
• Consulting with the student about the selection of panel members.

145Disciplinary procedures are internal to a provider and should not be unduly formal. It will not normally be necessary for a student or the provider to be legally represented at a disciplinary hearing, but it is good practice for procedures to allow for this where there are good reasons.

146A written record should be kept of any meeting or hearing, setting out who attended, a brief outline of the proceedings, and the reasons for the decisions taken, including any penalty applied. The reasons given should be sufficiently detailed to enable the student to understand the rationale for the decision and for any penalty applied. It is not normally necessary to make an oral recording or full transcript of the meeting or hearing, but it may be helpful to do so, particularly where the case is complex, or there is a significant factual dispute.

Relevance of previous offences

147A student’s previous disciplinary record will not normally be relevant to whether they have committed an offence. However, it is likely to be relevant to decisions about penalty.

148If the investigator decides the previous offence is relevant it should consider at what stage this information should be shared with the decision makers to ensure it is not prejudicial to a fair outcome being reached.

Penalty

149Providers should include in their procedures information on the possible penalties that can be imposed on students. It should include an indication of the penalties likely to apply in different circumstances, depending on the type of offence and its seriousness.

150The decision maker should give reasons for the penalty selected. They should explain why any lesser penalty was not suitable. It is good practice for the decision maker to go through the range of penalties available for the type of misconduct, consider each one, and record that they have done so. If the misconduct is so serious that the most severe penalty is the only option then the decision maker should explain why that is.

151Decision makers should bear in mind that being found guilty of a disciplinary offence might have more serious implications for some students. For example, a penalty that involves a period away from their studies may have an unintended impact on a student with a deteriorating health condition or an international student’s visa status. The decision maker should explain how they have taken these implications into account, as well as the student’s extenuating circumstances and other mitigating factors.

152Providers should ensure that decision makers apply penalties consistently, for example by keeping anonymised summary records of offences, mitigating factors, and penalties applied, which decision makers can refer to.

153Students should have the opportunity to present any mitigating circumstances or factors that they believe should be taken into account. Those factors are not normally relevant to deciding whether a student is guilty of an offence (unless a provider’s procedures state otherwise). But they should normally be taken into account when deciding on the penalty if the student is found to have committed an offence. Mitigating factors might include:

• The offence is a minor example of a serious offence, for example, minor damage to property;
• It is a first offence;
• The student admitted the offence at the earliest opportunity;
• The student has expressed remorse;
• The student has compelling personal circumstances that affected their judgment.

Cases involving more than one student

154It is important that joint or group allegations are dealt with in a manner that is fair to all the students involved. Providers should think carefully about how formal stage processes and panels are conducted:

• Is there an equal opportunity to hear and respond? It is good practice to ensure that all students involved hear and can respond to what the other/s have said or evidence they have provided. For panel hearings, it is good practice to consider joint or group allegations at a single hearing with all students in attendance. Students should also be given an opportunity to speak to the panel privately so that they can raise confidential or sensitive matters relating to mitigation.
• Is there consistency of decision making? Where it is not possible or practical to hear cases together, steps should be taken to ensure there is a consistent approach to all the students involved. It is good practice for the same panel to consider the case against all the students involved whether at a joint hearing or individually.
• Is there consistency of penalty? A decision should be made for each student individually, taking their particular circumstances into account. However, there should be broad consistency in the penalty given to all students who commit the same offence with similar circumstances.

155It is important to ensure that decisions are not reached by default. Providers should ensure that where cases are heard separately, a conclusion that one student has not committed the offence does not lead to the conclusion that another student must have committed it before their case has been heard.

Concluding the formal stage

156The provider should write to the student setting out the outcome of the formal stage, giving a clear explanation of, and setting out the reasons for, each decision and any penalty in straightforward language. This will help the student decide whether to appeal.

157The decision letter should also give information about:

• The student’s right to appeal;
• The grounds on which they can do so;
• The time limit for submitting an appeal;
• The appropriate procedure; and
• Where and how to access support.

158If the student does not appeal within the time limit for doing so, the provider should close the matter and notify the student in writing. It is good practice to issue a Completion of Procedures Letter at this stage if the student asks the provider to do so, but the letter should explain that the student has not completed the provider’s internal processes. The OIA publishes guidance on issuing Completion of Procedures Letters.

159The provider should keep records of disciplinary processes and their outcomes.

The appeal stage

160The student should be permitted to appeal against a decision that they have committed a disciplinary offence, and/or against the penalty imposed. The appeal should be considered by a member of staff who has not been involved at any previous stage. Providers can require a student (or their representative) to submit an appeal in writing, by email or online by completing the appropriate form.

161The appeal stage may involve a review of the formal stage, or a complete rehearing of the case. It is good practice to set out the grounds on which a student may appeal. Those grounds might include:

• That the procedures were not followed properly;
• That the decision maker(s) reached an unreasonable decision;
• That the student has new material evidence that they were unable, for valid reasons, to provide earlier in the process;
• That there is bias or reasonable perception of bias during the procedure;
• That the penalty imposed was disproportionate, or not permitted under the procedures.

162It is important to be clear about the remit of an appeal to ensure that students understand its purpose and scope. If the student’s expectations appear to exceed the scope of the appeal stage, the provider should explain this to the student as soon as possible in writing so that they understand the possible outcomes. The procedures should say whether the decision maker can overturn the outcome of the formal stage and substitute its own decision, or whether the matter needs to be referred back to the formal stage for reconsideration.

163If the student successfully appeals the outcome of a disciplinary process, the provider may need to consider whether there has been an adverse impact upon the student, and whether it should provide a remedy.

164If the procedures allow for an appeal hearing then the procedures should comply with the principles set out in paragraphs 138 to 146.

Complaint from another student

165If the disciplinary processes were initiated following a complaint from another student, it is good practice to inform that student when the formal stage has been completed. If the other student’s behaviour is found to have had an adverse impact on the student who made the complaint then the provider should offer a remedy for that impact.

166If the student who made the complaint is dissatisfied with the outcome of the disciplinary process, the provider should inform them what steps they can take. A witness in a disciplinary process cannot appeal the outcome of that process, but they may be able to make a complaint under the student complaints procedure if they have concerns about how the matter was  handled, or the outcome. At the end of the complaints procedure, the provider should issue the student who made the complaint with a Completion of Procedures Letter.

Concluding the appeal stage

167If the appeal is not upheld, or is not permitted to proceed under the grounds of appeal, a Completion of Procedures Letter should be sent to the student within 28 days. This should include, or be accompanied by, an explanation of the decision reached and the reasons for it, in straightforward language. This will help the student decide whether to pursue the matter further.

168The decision should also advise the student about:

• Their right to submit a complaint to the OIA for review;
• The time limit for doing so;
• Where and how to access advice and support.

169The time limit for bringing a complaint to the OIA is 12 months. It is good practice to draw the student’s attention to any factors of which the provider is aware that mean that it is particularly important for the student to bring the matter to the OIA promptly (for example because the course is being discontinued).

170Where an appeal is upheld, the provider should provide the student with a written outcome that explains what action the provider will take. It is good practice to issue a Completion of Procedures Letter if requested by the student. If the outcome involves referring the case back to the formal stage for reconsideration, it is good practice to ensure that reconsideration is concluded as soon as possible and, where practicable, within the 90 calendar days timeframe.

Independent external review (OIA)

171Once the appeal stage has been completed, the student is entitled to ask the OIA, the independent ombuds service, to review their complaint about the outcome of the provider’s disciplinary process. The complaint needs to be submitted to the OIA within 12 months of the date of the Completion of Procedures Letter.

[3] UUK Changing the culture: Report of the Universities UK Taskforce examining violence against women, harassment and hate crime affecting university students.

[4] For information about the Accommodation Codes of Practice see Useful Resources

[5] Universities UK and Pinsent Masons: Guidance for Higher Education Institutions: How to Handle Alleged Student Misconduct Which May Also Constitute a Criminal Offence (October 2016)