GOOD PRACTICE FRAMEWORK: HANDLING REPORTS ABOUT HARASSMENT AND SEXUAL MISCONDUCT  - After the initial response

134After a provider has provided an initial response to a student making a disclosure or a report, it should decide what further action, if any, should be taken. In making this decision, providers will need to take into account:

a.    The wishes of the student who shared information about the harassment and/or sexual misconduct. In general students making a report would like the provider to take some form of action. Students who have made a disclosure may not want a provider to take further action. Providers should focus on the content of what the student has shared, rather than the format or mechanism that was used to convey the information.

b.    The risks it has identified to the reporting student, responding student and other members of its community, and how these may manifest or be mitigated by taking particular types of action. Providers should give careful consideration to the views of the reporting student, especially where the reporting student perceives a risk of further harm. It is not appropriate to place pressure on reporting students to participate in a formal process if they do not wish to do so.

135Providers should establish mechanisms to identify instances where a single disclosure or report has not provided enough information to prompt further action, but where cumulative disclosures or reports indicate that this may be appropriate.

136Where the reporting student is not the student directly affected by the behaviour that has been reported, a provider will need to decide whether to contact that student. It may not be appropriate to do so if the report indicates that the student wishes to be anonymous or not contacted, or where contacting them could pose a risk to them. The affected student should receive the same kind of support as described for reporting students.

137Providers may decide between one or more of several different approaches, including:

a.    No further investigatory action

b.    Informal resolution

c.    Information gathering outside a student or staff disciplinary process focusing on the impact experienced by the reporting student

d.    Referral to alternative procedures including support for study or fitness to practise procedures

e.    Referral to the police

f.    Formal investigation under a staff disciplinary process

g.    Formal investigation under a student disciplinary process

138A reporting student should be able to request a review about the approach the provider decides to take (see paragraphs 298 - 303). Whichever approach a provider takes, it should continue to direct students to support for their wellbeing.

Timeframes

139The different approaches that a provider may take to reach a resolution after the initial response to a disclosure or report are likely to take different amounts of time. The complexity of an issue will affect how quickly it may be resolved.  Whatever route is followed, providers should try to reach a resolution as quickly as possible. It is good practice to give students indicative timeframes for the next steps in a process, and to keep them informed about progress or any delay.

140Factors which may legitimately extend the time taken to reach a resolution include:

a.    Taking account of the impact of the process upon other significant events for the students involved, such as assessment periods

b.    The unavoidable absence of the reporting person, responding person or other witnesses, such as sickness absence

c.    Taking a slower pace as part of a consciously trauma-informed approach

d.    Needing to gather information from a large number of witnesses or from sources external to the provider

e.    Needing to suspend action pending the outcome of actions being undertaken by the police or other statutory agencies

A. No further investigatory action

141Where a disclosure has been made only for the purpose of seeking support, it will often be appropriate for the provider not to investigate what has happened. This is contingent on any risks identified being appropriately managed in the absence of an investigation. A provider may also decide that it cannot take any further action to investigate reports that lack information about specific incidents or behaviours, that do not contain enough information to identify a responding person or are anonymous.

142Sometimes a reporting student may have shared a concern that could not amount to a breach of the provider’s expected standards of behaviour. For example, where the behaviour was carried out by someone who is not a part of the provider’s community, or where the incident would clearly not meet the provider’s definitions of harassment and/or sexual misconduct. In these circumstances a provider should not pursue a disciplinary investigation even if that is what the reporting student would like.

143If a provider has good reason to consider that a report has been made in bad faith, or is a repeated report from a student that has already been investigated, it may be appropriate not to take any further action to investigate it. Making repeated reports about the same issue, or making intentionally false reports could amount to harassment of another individual and providers can consider such conduct as a disciplinary matter. However, providers should clearly explain that students may make multiple reports about different incidents and that disclosures or reports that are made in good faith will not result in any disciplinary action. It is helpful to explain the difference between a report that is made in good faith that might not result in any clear disciplinary findings, and a report that contains deliberate falsehoods or with the primary aim of causing harm to another person.

144When a provider decides not to take any further investigatory action, it should record its reasons. Unless the reporting student was anonymous, or they have asked not to be updated, the provider should explain its decision to the reporting student. 

B. Informal resolution

145Informal resolution can enable providers to find a resolution that is acceptable to both reporting and responding students. There is no set form that informal resolution may take; the term describes a pragmatic and proportionate approach that is responsive to the particular circumstances. Successful informal resolution will often focus on what actions will benefit students moving forward, rather than seeking to establish a definitive interpretation of something that has happened or explicitly apportion blame. It is important to consider whether any form of informal resolution will be sufficient to manage any risks that have been identified.

146Some measures may be taken to resolve a reporting student’s concerns that do not require any communication with the responding person. For example, if this is what the reporting student would find helpful, a provider may be able to assist them by making changes to their teaching groups, timetable, supervision, or accommodation, to reduce their contact with another individual.   Providers might also consider additional monitoring of a particular location or social media thread; or delivering training to staff and/or students in general.

147A common form of informal resolution is a non-contact arrangement, which may be for the duration of either the reporting student’s period of study or the responding student’s period of study. For example, students may agree not to contact each other. A student may agree to move to alternative accommodation. This approach is more likely be successful when the measures do not have a significant impact on either party’s ability to engage in their study or work. For example, a responding student agrees not to use a particular study area on campus, but is able to use several alternatives. In these cases, it may be helpful to clarify to responding students that agreement to the arrangement will not be understood as an admission of any wrongdoing.

148A person who was unaware of the impact of their behaviour or did not intend their behaviour to have the impact it did, may agree to offer an apology as part of an informal resolution. They may also agree to undertake some activity to deepen their understanding about why their behaviour had this impact.

149Informal resolution may include a form of facilitated dialogue, such as mediation. Facilitated dialogue may be helpful in cases where someone is unaware of the impact that their behaviour has had on another member of the provider’s community or where a person needs help understanding and navigating cultural norms that may be new to them. A reporting student may want to be involved in the dialogue or may prefer for just the provider to speak with the other party. 

150Mediation processes must be voluntary. It is not appropriate to compel any member of the provider’s community to participate in a mediation process. Consent from both parties should be informed, freely given, and participants can choose to withdraw from the process. Providers should not draw any conclusions about the credibility or value of the information a student has supplied because they are reluctant to participate in these processes.

151Mediators may be members of the providers community or be external to it. Mediation is a skilled activity, and it is beneficial for providers to train any members of its community it appoints to carry out this role, and to offer them welfare support. 

152Information gathered during mediation processes is usually confidential to that process. It is good practice for an agreement to mediate to be drawn up in writing and signed by all parties at the outset of mediation. The agreement should set out the terms/principles of the mediation, including confidentiality.

153Mediation will not be appropriate for the resolution of cases of harassment and/or sexual misconduct where there in any indication of coercive control or where there is a significant power imbalance, such as between a member of staff and a student.

154Where any form of informal resolution is attempted but is not successful, providers may consider whether it is appropriate to move to an alternative approach (listed at paragraph 137). If a form of informal resolution is successful, it will not usually be necessary to offer any student the right to ask for this to be reviewed, nor to automatically issue a COP Letter.

C. Information gathering outside a student or staff disciplinary process focusing on the impact experienced by the reporting student

155It is not usually possible to carry out a formal investigation under a student disciplinary procedure if the responding student has left the provider. This is because there is usually no longer a contractual relationship between the provider and the responding student, under which such procedures operate. (Some providers may maintain a different contractual relationship with alumni and may operate formal disciplinary regulations within that relationship). If a responding student was on a course leading to a qualification in a regulated profession, providers should seek advice from the relevant PSRB as to any additional responsibilities they may have about the student’s ongoing fitness to practise. Providers may find it helpful to develop a policy about the time window within which it might consider beginning or restarting a disciplinary investigation if a student were to rejoin the provider.

156For responding members of staff who have left the provider, providers may need to seek advice from an employment law expert about the extent to which disciplinary findings can be made, and to explore the provider’s responsibilities in the areas of safeguarding, references and the member of staff’s fitness to practise in a regulated profession (where relevant).

157A provider may still be able to carry out an investigation under its disciplinary procedures if a reporting student does not agree to participate in that investigation. For example, where independent evidence exists about the behaviour (e.g. CCTV footage, social media posts) the evidence of a person who informed the provider about the issue may not be critical. But in many cases, it is likely that a provider will decide that it cannot carry out a fair disciplinary investigation if the reporting student does not participate in the process or does not want their identity to be known.

158It may also be difficult to carry out a fair investigation under a disciplinary process where significant time has elapsed since the reported incident or behaviour that has been reported. In these circumstances, the responding person may not have a fair opportunity to present a defence under a disciplinary process.

159In the circumstances set out in paragraphs 156-158, an investigation outside a formal staff or student disciplinary process may still be meaningful. Such an investigation would not focus on the conduct of an individual; an investigation outside a disciplinary process cannot reach formal findings that an individual responding person has breached the standards of behaviour expected of them. But an investigation may be able to identify lessons learned, cultural or systemic issues that may be addressed, and opportunities to improve policy and process. It is helpful to explain to reporting students the types of outcomes that may be possible under this approach.

D. Referral to alternative or additional procedures

160In some circumstances it may be appropriate to use a Support for Study process. This may be an appropriate route where a responding student is not currently fit to participate in either informal resolution or a disciplinary investigation process. Or it may be appropriate where the responding student presents a level of risk, to themselves or to other people, that is too high for the provider to manage through its normal support procedures. In some cases, this level of risk might be linked with a diagnosed or undiagnosed health condition, but it does not need to be. Sometimes a disclosure or report might suggest that the reporting student could benefit from additional support under a Support for Study process.

161Where a responding student is not able to participate in a disciplinary or other process, the reporting student should be informed, but it will not usually be appropriate for the provider to share details about the responding student’s health. Providers should continue to offer the reporting student support, which may include the continuation of precautionary measures until the responding student is able to engage in an investigatory process.

162Providers may decide to begin or recommence a disciplinary process after a support for study process has been used, when the responding student is able to engage.

163In some circumstances it may be appropriate to also use a Fitness to Practise process, if a responding student is studying towards a professionally accredited qualification or qualification in a regulated profession. It will usually be appropriate to carry out a single investigation to establish what has happened on the balance of probabilities, and to consider those findings separately through the lenses of the provider’s expectations about behaviour, and the regulated profession’s requirements.

E. Police investigations

164A provider will not usually be able to carry out an investigation under its disciplinary procedures while there is an ongoing police investigation.  The provider should normally respect the right of the reporting person to decide if they wish to make a report to the police. However, there may be occasions where a provider may need to report the incident(s) to the police or take other action to safeguard its community where it has identified a likely risk to someone’s safety or wellbeing. Section 7 of the Universities UK Guidance For Higher Education Institutions: How To Handle Alleged Student Misconduct Which May Also Constitute A Criminal Offence can be a useful tool to help providers consider what to take into account when deciding whether or not to disclose information to the police without the reporting student’s consent.

165A police investigation may make demands of a provider that conflict with good practice within its internal practices, for example by introducing lengthy periods of delay, or preventing providers from sharing information with either or both reporting and responding students to protect the integrity of the police investigation. Providers should document the reasons if and when they are unable to take actions that they otherwise would, because of a police investigation. Providers should continue to prioritise support for involved students and to re-visit risk assessments when there is any material change in circumstance.

F. Formal investigation under a staff disciplinary process

166The OIA’s remit is to consider complaints from students, and we have no remit to consider provider’s staff-facing processes, except in as much as these directly involve students. The Good Practice Framework does not directly apply to the processes a provider might follow to investigate a report about a member of staff or to staff misconduct procedures, although providers may decide to apply the principles outlined. The processes providers may follow will depend on their different legal responsibilities and employment contracts, which are beyond the scope of this guidance.  

167It is appropriate, and compatible with many providers’ Freedom of Information obligations, to make information that describes staff disciplinary processes publicly available. When a provider decides to investigate a student’s report under its staff disciplinary processes, it should:

a.    Explain to the reporting student whether, when and how they may be asked for more information than has been included in their written report

b.    Explain whether they will be given an opportunity to see and respond to any information supplied by the responding member of staff or gathered from other sources including other witnesses

c.    Explore with the student whether they can attend any disciplinary hearing, explaining their right to be accompanied to the hearing by a supporter (see paragraphs 216 - 225) and explaining what steps will be taken to support them feeling safe at a hearing.

168When a report about harassment and/or sexual misconduct results in an investigation under a staff misconduct procedure, the reporting student must be given an outcome to their report (see paragraphs 269 - 276). 

G. Formal investigation under a student disciplinary process

169The rest of this section gives additional detail about good practice in operating a student disciplinary process.