GOOD PRACTICE FRAMEWORK: HANDLING REPORTS ABOUT HARASSMENT AND SEXUAL MISCONDUCT  - Concluding the disciplinary process

Informing the responding student

267At the end of a student disciplinary process, the providers should follow the advice set in our Good Practice Framework: Disciplinary procedures (paragraph 156 onwards) for concluding non-academic disciplinary procedures. Providers should set out the outcome of the disciplinary process to the responding student in writing. Providers should clearly set out:

a.    How a decision has been reached including an explanation of how evidence has been weighed. It is helpful to explain how the decision-makers considered all the evidence, including acknowledging any evidence that did not support the decision that was reached.

b.    Clear reasons for any penalty selected, including how any mitigating factors or aggravating factors have been considered.  

c.    Where and how to access ongoing support that is available to the student (see paragraphs 288 – 290).

d.    The student’s right to appeal the decision, including information on how and when to submit an appeal. 

Revisiting the risk assessment

268It is good practice to revisit the risk assessment and consider how the outcome of a student or staff disciplinary process may have altered the risks that have been identified and the measures that the provider needs to put in place to mitigate these risks.

Informing the reporting student

269Unless the initial disclosure was anonymous or the reporting student says they do not want to be kept informed, it is good practice to inform the reporting student when a disciplinary process has been completed and what the outcomes of that process are. Giving a reporting student a formal outcome to their report is a powerful way providers can demonstrate the importance they place on addressing unacceptable behaviour. It will usually be appropriate to provide this information in writing so that the student has a record of it. Providers should consider how and when to share the information so that students can access appropriate support. 

270It may be appropriate to also share the outcomes of the disciplinary process with other witnesses, for example where the witnesses may also be concerned about future interactions with the responding person.

271This applies to the outcomes of both student and staff disciplinary procedures. Given the imbalance of power inherent in a student making a report of harassment or sexual misconduct against a member of staff, it is particularly important that students can have confidence in the fairness of the processes and the value of making a report.

272Providers registered with the OfS, or those working in partnership with registered providers should be mindful of Regulation E6.11.n.viii which requires that “persons directly affected by any decisions made in respect of incidents of harassment and/or sexual misconduct are directly informed about the decisions and the reasons for them.” Providers that operate staff or student processes that promise responding parties complete confidentiality of outcomes are unlikely to comply with this requirement.

273Providers must balance the need to provide an outcome to the reporting student with the privacy rights of the responding student or responding member of staff. It may also be relevant to consider the privacy rights of other witnesses. Where the responding person is a member of staff, providers will need to consider their additional rights as an employee.  

274Data protection legislation does not prevent providers from sharing information in these circumstances. In deciding what information to share, providers can consider the practical guidance provided in UUK's Changing the culture: sharing personal data in harassment cases. This guidance offers practical recommendations to providers for approaching decisions to share personal data in relation to harassment cases. It is also relevant to consider for cases of sexual misconduct. The guidance particularly focuses on the sharing of information about outcomes and penalties and provides a framework to support providers in their decision-making process, taking account of legal, regulatory, policy and wellbeing reasons for sharing data. Providers can also consider the EHRC’s Sexual harassment and harassment at work: technical guidance. This would be directly applicable if the reporting student is also a member of staff, and the principles can still be considered when the reporting person is not an employee. This explains that, “while employers must comply with the data protection principles under Article 5 GDPR, they should not assume that disclosure of the harasser’s personal data will amount to a breach of the GDPR. It often will not if the employer has been clear that outcomes may be disclosed, considered what grounds it has for disclosure and acts proportionately in disclosing personal data.” (paragraph 4.84)

275It is good practice to document reasons for deciding what information can or can’t be shared. It is good practice for providers to consider including at least the following information:

a.    What steps were taken to investigate the report.

b.    A summary or high-level description of the evidence made available to the decision-maker(s), or a copy of that evidence.

c.    Who made the decision(s).

d.    What measures may be put in place to prevent the issue that led to the report happening again.

e.    If the behaviour is found to have had an adverse impact on the reporting student, a remedy for that impact.

f.    The availability of ongoing support.

g.    The right to request a review of how the report has been addressed.

276It is good practice to explain to the reporting student that the responding student has a right of appeal against the disciplinary outcome, and to explain any corresponding process that may apply to staff disciplinary cases.

The right of appeal for the responding student

277Paragraphs 160 – 164 of our Good Practice Framework: Disciplinary Procedures give advice on dealing with the appeal stage of student disciplinary procedures. Only the responding student has a right of appeal against the outcome of their disciplinary process.

278When a student or a member of staff appeals the outcome to their disciplinary procedures, the provider should think carefully about how it keeps the reporting student informed. Reporting students may prefer not to receive any updates unless or until a change is made to the outcomes. It may not be necessary to update the reporting student about an appeal that is quickly dismissed, for example because no grounds for proceeding have been established. However, where there is a prospect that the reporting student may be asked for more information, or where the outcomes may be amended, it is likely to be necessary to inform the reporting student that the responding student or member of staff has submitted an appeal against the disciplinary outcome, and to explain the next steps in the process. It is important to continue to offer support to the reporting student during the appeal process.

279It is good practice to address an appeal swiftly. Prolonged uncertainty about the final outcome of the process is likely to be distressing for both reporting and responding students. Where it is necessary to gather additional information, it will usually be beneficial to do this as soon as possible. Where a penalty has been applied that prevents a student from fully engaging with their studies, a drawn-out appeal process may place them at a further disadvantage.

280It is good practice to set a deadline for responding students to make an appeal against the outcome of a disciplinary process. The deadline should allow the responding student sufficient time to understand the decision and to obtain advice. Providers should apply the deadline flexibly where students present good reasons for a delay, whilst being mindful of the impact of delay on other interested parties.

281It is not usually necessary to issue a COP Letter to responding students who do not exercise their right to appeal. If a student requests a COP Letter without making an appeal, providers should refer to the OIA’s guidance about COP Letters.

282If a responding student makes an appeal after the deadline and the provider decides not to accept it, it should issue a COP Letter explaining that the appeal was made out of time. Where relevant, the letter should explain why the student’s reasons for making the appeal late were not accepted.

283It is good practice to specify grounds for appeal. Disagreement with the decision that has been reached will not usually be enough to establish grounds for an appeal to proceed. Those grounds might include:

a.    That the procedures were not followed properly;

b.    That the decision maker(s) reached an unreasonable decision;

c.    That the student has new material evidence that they were unable, for valid reasons, to provide earlier in the process;

d.    That there is bias or reasonable perception of bias during the procedure;

e.    That the penalty imposed was disproportionate or not permitted under the procedures.

284When an appeal is received, providers should first consider whether the appeal falls within the permitted grounds. Where an appeal submission is unclear or does not appear to meet any of the grounds, providers may decide to offer the student the opportunity to amend their appeal or further explain their concerns. If the provider decides that the appeal should not be taken forward because it does not meet the permitted grounds for consideration, it should issue a COP Letter.

285It will usually be appropriate to continue to apply any penalty or other arrangements that have been put in place to manage a student’s behaviour or contact with other members of the provider’s community while an appeal is ongoing. Providers should consider whether the information provided in an appeal indicates any additional need for support for the responding student, or whether any change should be made to its risk assessment.

286The decision on the appeal should not be made by any individual that previously provided wellbeing support to the reporting or responding students, carried out the investigation, or decided if misconduct took place.

287Where an appeal does appear to meet the grounds for consideration, providers will need to decide what process is proportionate to respond to an appeal. Options include:

a.    A paper-based review

b.    Activity to gather additional information in the form of interviews or written statements

c.    A hearing in front of an appeal panel.

The benefits of involving more than one person in a decision-making process, and of an oral hearing are set out above (see paragraphs 209 - 214). Providers should think carefully about the value of a hearing, particularly if a student was not afforded the opportunity of a hearing previously.

288Procedures should clearly set out the remit of the appeal decision-maker. The procedures should explain what will happen if an appeal is upheld. Providers may find it more practical to operate a process that allows decision-makers at an appeal stage to set aside the decision of the disciplinary panel and also to reach new findings on the disciplinary matters. This approach is likely to be less resource intensive for the provider, and less demanding and stressful for both reporting and responding parties.

289However, it may be more appropriate to put the matter before a fresh decision-maker as at the earlier stage in the process, if an appeal indicates that the first process was so flawed that a responding student has not yet had a fair opportunity to understand and respond to the evidence that has been gathered.

290If a provider sets aside the previous decision and reverts to an earlier stage in the process to make a fresh disciplinary decision, it will usually be appropriate to give the responding student a fresh right of appeal against the new decision.

291At the conclusion of the appeal, the provider may:

a.    Reject the appeal and maintain its previous disciplinary decision.

b.    Uphold the appeal in part or in full, but reach a fresh decision that results in the same outcome and/or same penalties.

c.    Uphold the appeal in part or in full, and amend its disciplinary decision and/or amend any penalties that have been applied.

d.    Uphold the appeal in part or in full, overturn its disciplinary decision and withdraw any penalties that have been applied.

292Where an appeal is upheld in part or in full, it may be appropriate for the provider to consider whether the responding student should be offered any remedy in addition to the amended outcome. This will be particularly appropriate where the appeal is upheld because of bias or a serious procedural error that was avoidable. This is unlikely to be necessary where an appeal was upheld because new evidence was presented by the student, and the provider was not at fault in failing to identify the evidence at an earlier stage.

293At the end of the appeal process, the provider should revisit the risk assessment and consider how the outcome of the appeal may have altered the risks that have been identified and the measures that the provider needs to put in place to mitigate these risks.

294Providers should consider informing the reporting student about the outcome of any appeal. This will be particularly relevant when the appeal outcome could affect any measures previously in place to manage contact between the parties.

Supporting the responding student at the end of the process

295Where a responding student is not permitted to continue with their studies or is required to interrupt their studies for a defined period as an outcome to the disciplinary process, it is good practice to support them to access wellbeing services including counselling services. Where there are limits on what a provider or SRB can provide to former students, it is important to direct them to other publicly available sources of support. Responding students may need advice and support on other related issues, such as academic, financial and accommodation concerns. 

296Where a responding student is permitted to continue with their studies, they may need additional support to resume their studies after any period of interruption. Providers should consider ways to minimise administrative and emotional burden, for example by allowing students to submit requests for additional consideration of their circumstances without requiring detailed supporting evidence. Similar considerations apply for reporting students (see paragraphs 63 - 71).

297If a responding student is involved in further formal procedures, such as academic appeal, complaint, disciplinary or fitness to practise or study processes, care should be taken to manage any perception of bias that could arise if individuals involved in the disciplinary process are involved.

The route to request a review for the reporting student

298Providers should set out clearly how a reporting student can raise concerns about the outcome of their report about the behaviour of another student or member of staff. It is unusual to allow a reporting student to make an appeal that directly challenges the outcome or penalty applied to another student or member of staff through a disciplinary procedure. But providers should provide a route for reporting students to raise concerns about any aspect of their experience since making a report, including how they have been supported, questioned and kept informed, or the overall outcomes of the reporting process. Reporting students may use the process to raise concerns at any time after the report has been made. Depending on the nature of the student’s concerns, it may be necessary to wait for another action to be complete (for example, the conclusion of a disciplinary process) before the provider can give a full response.

299Providers may specify grounds for requesting a review, which could include:

a.    Concerns about the fairness of the procedures followed to investigate the report, including bias or a reasonable perception of bias.

b.    Concerns about whether the actions taken to support the reporting student during the process were reasonable.

c.    Concerns about whether arrangements that have been put in place to continue to support the reporting student are reasonable.

300The reporting student’s request for review should be considered by someone who has not acted as a wellbeing supporter for the reporting or responding student, an investigator or decision-maker.

301It is good practice to keep a trauma-informed approach in mind when considering the reporting student’s request for a review. It is unlikely to be proportionate to conduct a full three-stage complaint process to explore the concerns raised. Providers can use their discretion to consider the request in a similar way to the review stage of its formal complaints procedure. This will help minimise the need for the reporting student to give their account of events multiple times through separate processes. 

302In some cases it may be necessary to use interviews and gather additional written statements. Particularly if the concerns related to bias or evidence not gathered, which may lead to a provider considering to re-open a disciplinary process. Re-opening a disciplinary process is a very significant step that should be informed by identification and balancing of risk. Sufficient care in carrying out the disciplinary process in the first instance is the best way for providers to mitigate against the need to repeat a process that will be very difficult for all parties involved.

303Where a provider identifies shortcomings in the way it handled the reporting student’s report about the behaviour of another student or member of staff, it should think about how to put that right, which might include considering practical and/or financial remedies. Where a disciplinary process is re-opened, the reporting student should receive a fresh right to request a review once the process has been re-run. At the end of the process, the provider should issue a COP Letter to the reporting student who requested the review, either automatically or on request in accordance with our COP Letter Guidance Note.