GOOD PRACTICE FRAMEWORK: HANDLING REPORTS ABOUT HARASSMENT AND SEXUAL MISCONDUCT  - Role of decision-makers

241It is the provider’s responsibility to ensure that its decision-makers have sufficient understanding of the extent and limits of their role, and of the legal and procedural framework that it operates within. It is not the role of either the reporting or responding students, or their supporters, to inform decision-makers about key legal principles. No student should require legal representation to be assured that the provider has a sound understanding of procedural fairness and of the frameworks within which a decision is made.

242Providers may decide to supplement the knowledge of individual decision-makers by including a function which provides specialist procedural and/or legal advice but which does not participate in the decision-making process.

243Decision-makers may benefit from access to support where the information they have to consider is distressing.

Burden and standard of proof

244As set out above (see paragraphs 104 - 106), when a student tells a provider about experiencing or witnessing harassment or sexual misconduct, the person receiving the student’s initial disclosure should accept the report at face value and provide support to the reporting student on this basis.  It is important that reporting students feel heard.

245But providers must balance this with the need to ensure that within a disciplinary process, the correct burden and standard of proof is applied. 

246The “burden of proof” determines whose responsibility it is to prove an issue. In a disciplinary case the burden of proof is on the provider, that is, the provider must prove that the responding student has done what they are accused of doing. It is not the responding student’s responsibility to disprove the report, although they can be invited to rebut the evidence which supports the report against them. 

247There is an inherent tension in believing what a reporting student says, but not beginning a disciplinary process with any presumption that unacceptable behaviour has taken place. To avoid a perception of bias, wherever possible providers should not allow any individual who provided emotional and wellbeing support at the point of initial disclosure/report to also carry out the subsequent investigation or to function as a decision-maker within the disciplinary process.

248It is not appropriate for provider’s internal disciplinary processes to apply a criminal standard of proof, that is, “beyond all reasonable doubt”. Providers should apply a civil standard of proof, commonly stated as “on the balance of probabilities”. Although the threshold is lower than in criminal cases, providers must still have a sound evidential basis for deciding that the standard has been met. It is not enough to say that it is possible that an event or incident occurred. To conclude that a student has breached its regulations, a provider must be able to explain why it believes that it is more likely than not that the event or incident occurred and why this was a breach.

Evaluating information and evidence

249Often in cases about harassment and sexual misconduct, something took place that was not witnessed directly by anyone except the reporting student and the responding student. This will often mean that decision-makers must decide which account they prefer. This can be highly nuanced, when students hold very different perceptions of what happened. Sometimes decision-makers may conclude that they accept parts of each account.

250It is good practice to train decision-makers to evaluate evidence, to reach decisions about its accuracy and reliability, whether it comes from a credible source, and the relative weight that should be placed on different pieces of evidence. Some factors to consider when evaluating evidence include:

a.    Whether documentary or digital evidence is contemporaneous to an incident or may have been affected by subsequent events or perceptions, or appears to have been altered.

b.    Whether the information comes from a person who directly observed the thing they are describing (whether that is an incident or the impact it appeared to have on a person).

c.    Whether there are inconsistencies in an account and whether these may be explained by lapses in memory or the impact of trauma, whether there are other factors that may have affected a person’s perceptions, or whether there are indications of deliberate changes intended to make an account more compelling.

d.    The relative likelihood of any different explanations about what has happened and why it happened the way it did.

251Providers do not have to meet the standards that would apply to a legal court process when considering what kinds of evidence may be admissible. Providers can take a proportionate approach to assessing the reliability of evidence. For example, if an SMS message appeared to be sent from a phone number known to have been previously used by a student, it would be reasonable for a provider to assume that the message was sent by that student, unless the student could supply other evidence to demonstrate that the phone was not in their possession at the relevant time. It would not usually necessary for a provider to consult an expert in the security of digital technology to support its assumption.

252People instinctively and habitually rely on a range of unspoken cues in another person’s behaviour to assess whether that person is truthful, including their body language, mannerisms and choice of vocabulary. Some of these habitual responses are not helpful in the context of a disciplinary hearing concerning harassment and sexual misconduct. 

253It is important not to make assumptions about how a person who has experienced harassment or sexual misconduct would behave; at the time of the event, immediately afterwards, and subsequently. Specialist training can help decision-makers to understand why a reporting student may not come forward for some time; why they may have continued to interact with the responding person; why and how trauma affects the formation of memory and can result in a reporting student’s narrative changing over time.

254Panel members will also benefit from training about how different conditions or disabilities may affect how students present themselves in person or in writing. Indicators such as maintaining eye contact or displaying visual indicators of a particular emotional state may not be reliable indicators of credibility.

255Panel members will also benefit from cultural awareness training. For example, some groups of students may have different approaches to conflict or different levels of confidence in challenging perceived figures of authority. This kind of training may also help panels to understand how and why some behaviours can have a more significant impact on different groups of students.

Impact statements

256Reporting students and other witnesses may have described the impact of the behaviour upon them. This may be intertwined with the information they gave about the events or may be given separately. For some reporting students and witnesses, it can be helpful to articulate the impact, and to have this impact acknowledged by the provider. This can help providers to identify the kinds of support that the student may find most helpful.

257Some reporting students or other witnesses may want the responding student or member of staff to be made aware of the impact that their actions had. This can offer the reporting student and other witnesses some form of resolution. It also provides a learning opportunity for the responding student or member of staff.

258Other reporting students and other witnesses may not want the responding student to be made aware of the impact that their action had. It will not be appropriate to share this information without the reporting student’s or other witnesses’ consent. Where information about impact is material to the decision-making on the reported behaviour being considered, 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 (see paragraph 237). This might include agreeing a summarised version of the impact statement that the reporting student or witness gives consent to be shared.

259Impact statements should primarily be used as a tool for supporting the reporting student towards resolution, rather than as evidence within the disciplinary process.  Providers should exercise caution in how impact statements are used in reaching decisions about whether harassment or sexual misconduct took place. It is important to take account of the reporting student’s perception but also to note the objectivity test (see paragraph 33). Reporting students and witnesses will have unique responses to what they have experienced. The impact on some students may appear to be obvious, but others may be less so. There is no set timeframe in which an impact will be felt by someone who has experienced harassment or sexual misconduct. Just because a reporting student appears to have “carried on as normal” is not compelling evidence that harassment or sexual misconduct did not take place. Equally, significant changes in a reporting student’s behaviour may indicate that a student has experienced something very difficult, but this may not prove that the specific breach of discipline took place as described. Providers should carefully explain how decision-makers have evaluated evidence about impact.

260Information about impact can be helpful to providers to identify whether it is appropriate to continue any restrictions on the responding student as part of a penalty.  But providers should exercise caution in taking impact into account as a measure of the severity of the disciplinary breach. Providers have a responsibility to apply disciplinary penalties in a consistent manner.  Identifying an appropriate penalty must not rely upon the ability of a reporting student or other witness to communicate the impact that they have experienced.

Selecting a penalty

261It is common practice to apply a penalty where a student has been found to have breached the provider’s code of conduct or standards of behaviour.  Providers usually have a range of penalties that may include both educative and punitive elements (see paragraphs 149 – 153 of the Good Practice Framework: Disciplinary procedures).

262When selecting a penalty, providers should take account of mitigating and aggravating factors. It is also good practice to consider any factors that may make the selection of a specific penalty disproportionate, such as maximum time limits for completion of a particular course or conditions of a student’s visa. Where a penalty may interfere with the responding student’s rights under the European Convention on Human Rights, the provider should document its reasons for deciding this is a proportionate interference. It is unlawful for providers that are public authorities to interfere disproportionately with a Convention right (e.g. the Article 10 right to freedom of expression). 

263Mitigating factors could include information about the responding student’s health or other personal circumstances that affected their behaviour or ability to reflect on their behaviour; information about the responding student’s intentions where there was clearly no intention to cause harm; information about the responding student’s behaviour since they were first informed of the concerns, such as any acceptance of responsibility, expression of regret and understanding of the impact of the behaviour, and compliance with precautionary measures.

264Aggravating factors could include information about previous breaches of the provider’s standards of behaviour or other disciplinary breach; information about the responding student’s behaviour since they were first informed of the concerns including any unreasonable denial of responsibility, unreasonable refusal to engage in training or self-reflection, any breaches of precautionary measures, or continued unacceptable behaviour. It will normally be appropriate to consider any further instances of poor behaviour that take place during the disciplinary process, including victimisation, as a separate breach of the expected standards. It is likely to be appropriate to apply a more serious penalty where there have been multiple breaches of the expected standards. Behaviour that is deliberate, targeted, persistent and planned will usually attract more severe penalties than behaviour which had an unintended effect, was not recurring, or which stemmed from a single moment of poor decision-making.

265It is good practice for decision-makers to consider all the penalties available to the provider, beginning with the least severe.  Decision-makers should record why they have selected a penalty. It is good practice to record why lesser penalties were not considered to be appropriate.

266It is usually appropriate to consider any failure to comply with a disciplinary penalty as a further breach of the provider’s code of conduct or expected standards of behaviour. It is likely to be proportionate to follow an expedited disciplinary process to consider the consequences of not complying with a penalty. Responding students should be provided with an opportunity to make representations about the non-compliance within that process.