GOOD PRACTICE FRAMEWORK: HANDLING REPORTS ABOUT HARASSMENT AND SEXUAL MISCONDUCT  - Holding a disciplinary hearing

215Paragraphs 138–146 of our Good Practice Framework: Disciplinary Procedures provides advice on arranging and holding student disciplinary hearings. In the following paragraphs we provide some additional information on good practice specific to disciplinary hearings related to reports of harassment and/or sexual misconduct. 

Support and representation

216Any student participating in an investigation meeting or disciplinary hearing may wish to be accompanied by a supporter and it is good practice to allow this. Disciplinary procedures are internal to a provider and should not be unduly formal. It should not be necessary for reporting students or responding students to access legal advice to understand the process that is being followed, the decisions the provider has taken and the reasons for those decisions. 

217Students who have access to well-trained and -resourced student support services, or SRBs, will not normally need to seek legal advice or representation, although they may wish to in serious cases. Providers should allow support from a legally qualified person for the responding student in complex disciplinary cases, or where the consequences for the student are potentially very serious.

218It is not usually necessary or appropriate for any student attending a disciplinary hearing as a witness, including the reporting student, to have legal representation. This is because, in a disciplinary process, the provider, not the reporting student, is taking action against the responding student. 

219It is not good practice to impose narrow limitations on who may act as a student’s supporter. Given the sensitive nature of these issues, it is important that students feel comfortable with the person they have chosen to support them. Providers may strongly encourage students to make use of support from within its community, particularly where there are trained SRB or provider staff with expertise in the area of complaint and the provider’s processes. 

220A student’s supporter should not be a person who is also acting as a witness.

221The role of a supporter could include:

a.    Offering a reassuring presence in the meeting.

b.    Monitoring the wellbeing of the student and advocating for their needs regarding the conduct of the meeting, for example, asking for a break if a student has become upset.

c.    Ensuring that the student has understood the questions put to them or information given to them and encouraging the student to ask for further explanations as necessary.

d.    Listening and taking notes of the meeting on behalf of the student, to enable the student to focus on the content of the discussion.

e.    Reminding a student about points they had intended to raise and ensuring that the student has had an opportunity to explain their experience fully

f.    Helping students to raise questions and challenge evidence appropriately (for example, via the Chair).

222It is usually reasonable for providers to expect student witnesses and responding students to answer questions themselves. It is not usually the role of a supporter to answer questions on behalf of a student. But providers should allow for some flexibility, taking account of the level of distress a student may be experiencing. It may also be appropriate for a supporter to take a more active role as a reasonable adjustment for a disabled student. 

223It is not the role of a supporter to offer their own viewpoint about what has taken place.

224It is not the role of a supporter to undertake a cross-examination of any other person involved in the meeting or hearing.

225It is good practice for providers to provide guidance for supporters about the role they are undertaking. For example, supporters should be reminded of the need to respect the confidentiality of the process. If a supporter persistently strays outside their role or if their behaviour becomes a cause for concern, Chairs should be empowered to halt proceedings and remove the supporter from further involvement with the process. In these rare cases, it may be necessary to allow the student additional time to find another supporter.

Witness attendance

226The purpose of a witness attending a hearing is to enable the decision-makers to explore the information they have provided in greater depth. It is particularly beneficial when there are gaps, inconsistencies or conflicts in the information that has been gathered during the investigation phase. It is common practice for the investigatory report to indicate which witnesses a panel may benefit from hearing from.

227It may not be necessary to require witnesses to attend an oral hearing where the information they have provided is not in dispute or where it is not directly relevant to the specific breach of discipline being considered. It is not usually necessary to hear from “character witnesses” at an oral hearing.

228It is good practice to give the responding student an opportunity to ask for additional witnesses to appear, before the hearing takes place.

229Providers may also decide to inform the reporting student about the witnesses that are appearing before the panel, and consider any representations they may wish to make. Ultimately the decision about which witnesses to hear from rests with the Chair of the panel. It is good practice to document the reasons for excluding any witnesses and to share this information with the responding student.

230It is good practice to give students who may attend a disciplinary panel guidance about what to expect. For example, to explain the format of the disciplinary hearing, how their wellbeing will be taken into account during that process and the need for confidentiality.  It is not appropriate for individual attendees to make recordings of disciplinary panels. Where a recording is required as a reasonable adjustment, the provider should make it.

231It is the responsibility of the provider to communicate with witnesses about their attendance at a disciplinary hearing. It is not the responsibility of reporting or responding students to coordinate attendance by other members of the provider’s community or other third parties, although the reporting or responding students may need to supply the provider with contact details for those third parties.

232It will usually be relevant to ask the reporting student to attend the disciplinary hearing to give their evidence.

233Providers cannot compel any witness to attend a disciplinary hearing. But they should explain to a student witness (including reporting students or other students directly affected by the behaviour being considered) the possible impact of deciding not to attend the disciplinary hearing. This may affect the weight a decision-maker can place on the information that has been provided previously, because they have not been able to explore it fully.

234Providers should operate a flexible process to enable students to attend and participate in disciplinary hearings. For example, panels may use some online attendance to ensure that the reporting student and responding student are not in the same room. 

235For the responding student, it is essential that they can challenge and question the evidence against them. But this does not mean that they must always be allowed to put questions directly to any witness, including the reporting student. It will often be appropriate for responding students to put their questions to the Chair of the panel. The Chair is responsible for deciding whether and when to ask the witness to answer the question. Responding students could be asked to provide their proposed questions in advance to the Chair of the Panel.  Responding students must retain the right to respond to information that is new at the oral hearing. The Chair should document a brief rationale if they require questions to be modified before asking them or if they decide not to ask them at all.  

236Where a reporting student or other witness doesn’t attend a panel hearing, the provider should think carefully about how the panel and the responding student can still be given an opportunity to test their evidence. For example, this could include questions collated by the Chair being put to the witness in writing, or via the investigator.

237The circumstances in which a responding student should not be permitted to hear all the evidence presented by other people to the disciplinary panel are likely to be very limited. Decision-makers should document their reasons for accepting any information that cannot be directly shared with the responding student and record the steps they have taken to ensure that the responding student’s right to a fair process has not been compromised.

238It will not usually be appropriate for a reporting student or other witnesses in a disciplinary process to continue to be present at a disciplinary hearing after they have given their evidence. Sometimes the panel may have further questions for any witness arising from what the responding student or another witness says to the panel. It is good practice to operate a flexible process that enables the panel to ask witnesses for additional information, in person or in writing, before it reaches a decision. The Chair of the panel should decide what further enquiries are necessary and proportionate to enable the panel to reach a decision.

239Panel members should be aware that attending a disciplinary hearing can be distressing for the reporting student, responding student and other witnesses. Providers should train panel members and Chairs of Panels to ask questions in an open way which provides each person with a fair opportunity to describe their own experience.

240Providers may decide to make an audio-visual recording of a hearing, either as the official record of the hearing or to assist in making a summary. Providers should consider any objections from participants before making   an audio-visual recording. It is not usually necessary to retain a full verbatim transcript or recording of the hearing, although providers may choose to do so. Where a written summary is produced, it is important that this accurately reflects the information presented by each witness.