GOOD PRACTICE FRAMEWORK: HANDLING REPORTS ABOUT HARASSMENT AND SEXUAL MISCONDUCT  - The investigation and information gathering stage

Appointing the investigator

180Where the provider decides to carry out a student disciplinary investigation, it should appoint an investigator as soon as possible. Wherever possible the investigator should be trained in how to gather and evaluate information using trauma-informed techniques. This is particularly important where the behaviour has already had a severe impact on the reporting person.

181In accordance with the principle of fairness, the investigator appointed should not have been involved previously in the matters being considered in a student’s case. This means that the investigator should not be a person giving support to either the reporting student, the responding student or witnesses, where this support goes beyond providing advice about the reporting and disciplinary procedures. If a facilitated dialogue or mediation has been attempted but was unsuccessful, the person who led that discussion should not carry out the disciplinary investigation.

182It can be helpful to give the reporting student and responding student an opportunity to raise concerns about the individual appointed as the investigator as early as possible, before any confidential information is shared. This enables the provider to consider whether either student has a reasonable basis for any concerns raised and address any actual or reasonable perceptions of bias. This also helps to give students some agency and confidence in the investigation process (see Good Practice Framework - Bias and the perception of bias).

183In most cases it will be appropriate and reasonable for a provider to appoint an internal staff member to conduct the investigation.  Equally, providers may decide to appoint an external company/investigator, to carry out the investigation on its behalf. This can be beneficial to increase a provider’s capacity or access to expertise. Where a provider chooses to do this, it retains overall responsibility for the process followed and any decisions made.

184Providers may wish to consider arrangements to use resources within existing partnership arrangements or setting up partnerships with other providers explicitly to offer each other access to independent additional resources. 

Gathering information

185Investigators will not have the same access to resources as those conducting criminal investigations. Providers cannot compel individuals to cooperate in investigations or provide evidence, but they should do all they can to obtain as much relevant information as possible. This may include:

a.    interviewing or requesting more information from the reporting student

b.    (where this is different) interviewing or requesting information from other individuals who directly experienced the behaviour

c.    interviewing or requesting information from the responding student

d.    interviewing or requesting information from other relevant witnesses

e.    requesting relevant evidence from reporting students, responding staff and students and witnesses, which could include, for instance, emails, direct messages or social media posts, photographs, medical reports, etc

f.    obtaining/securing any relevant CCTV footage. This may include taking swift action to secure the footage to avoid it being deleted in line with normal data retention policies

g.    Seeking information from relevant technical experts (for example, gathering information from a provider’s IT support function about activity that took place on its own IT system)

h.    Gathering information from other publicly available sources (e.g. social media posts)

i.    Finding out whether any previous disclosures that were not investigated indicate that there may be a pattern of behaviour that might now require further exploration

The process followed at the investigation stage will, to some extent, be governed by the reporting process and the level of detail that the reporting student chose to share during that process.

186Investigators will need to take a flexible approach to the information gathering process and be responsive to the preferences of the reporting and responding students and students who are witnesses about formats that work for them. Investigators will also need to consider whether to make reasonable adjustments to the information gathering process to take account of the individual needs of students.

187It is good practice to provide students with notice of formal interviews including details about who will be present. It is good practice to supply written information in advance about the process that is being followed and to remind students of the support that is available to them. Any student may wish to be accompanied to an interview by a supporter, and this should be permitted (see paragraphs 216 - 225).

188Providers will need to think carefully about how much information to provide to the responding student in advance of any interview. Responding students must be given enough information to enable them to understand what behaviour has been reported as being unacceptable, and to understand when and where the incidents are described as having taken place. However, to ensure a fair investigation, it may be helpful in some circumstances to allow a responding student a first opportunity to present their account before sharing all the details supplied by the reporting student or gathered from other sources. A responding student may be placed at a disadvantage by focusing only on responding to what the report includes and may therefore not present other relevant information that is not yet known to the investigator.

189Providers should interview students involved in the investigatory process, including witnesses, separately from each other. This helps providers to control how much confidential information is shared with each student and can reduce concerns about collusion between witnesses, that could undermine the value of their evidence.

190Although providers must not require students to adhere to any Non- Disclosure Agreements (NDAs) they should explain how discussing the content of the interviews or of their written information with other people involved in the process or widely with other members of the provider’s community could have a detrimental impact on that process. Providers may also ask students not to disseminate information using social media before a conclusion has been reached. It can be helpful to explain to students why a lack of confidentiality can undermine the quality of the evidence and make it harder to reach conclusions. It is good practice to remind students about the support services they are still able to talk to about the investigation and their own wellbeing. 

191Where there are multiple reporting students or multiple students affected by the behaviour, they may already have discussed the matter before making a report or before being interviewed. It can be helpful for the investigator to explore and document this, for example, noting that Student A was prompted to remember a detail after discussion with Student B.

192Investigators must approach gathering information from a position of neutrality, and endeavour to take an exploratory approach rather than an adversarial or interrogative one. When investigators ask students questions, it can be helpful to explain why the question is relevant, particularly where a question may seem insensitive or open to misinterpretation. 

193It is good practice to provide any person who is interviewed with a note of the meeting. Investigators may choose to make an audio/visual record of interviews and may decide to produce a full transcript but this is at their discretion. It is also good practice to provide the person with an opportunity to add any points of clarification to the meeting record. Where there are conflicting recollections about the meeting, the record can note this; it is not always necessary to reach a point of agreement.

Additional reports

New reports for the same responding student

194During the investigation process, students or other people may report additional incidents of behaviours that could be harassment or sexual misconduct, or may report experiencing victimisation because of making a report or participating in the disciplinary investigation. The investigator will need to decide whether these are matters that can be considered within the same investigatory process, or whether they should be considered separately. In making this decision, investigators should consider:

a.    How closely related the incidents are, for example, whether they involve the same people, whether they took place within a short space of time, whether they might form a pattern of repeated behaviour.

b.    Whether adding a new area for investigation would significantly delay being able to reach a conclusion on the matters already in hand.

c.    The impact on reporting and responding parties of running two separate processes concurrently or consecutively.

d.    Whether the provider has sufficient trained staff resource to run a second investigatory process entirely separately from the first process.

Counter reports

195During the investigation, responding students may raise counter reports against the reporting students. Providers will need to respond to the new reports, in terms of considering students’ welfare and support needs, evaluating risks and identifying any new or additional precautionary measures that may be appropriate.

196Providers should not assume that a report made by a responding student is purely retaliatory nor that a report is more likely to be true because it was made first. However, providers should also be alert to attempts to manipulate the situation. It may be helpful if investigators have an understanding about DARVO tactics (Deny, Attack, Reverse Victim and Offender) that may be used by abusers.

197Providers should decide how to investigate counter reports and whether to open a disciplinary process against another student or member of staff on a case-by-case basis. Providers may decide to:

a.    Investigate all the reports concurrently, leading to separate disciplinary hearings.

b.    Investigate all the reports concurrently, leading to a customised joint disciplinary hearing.

c.    Complete the first investigation and disciplinary process before investigating the new reports.

d.    Pause the first investigation and disciplinary process to investigate the new reports.

198In deciding what approach to take, providers may consider prioritising:

a.    Investigation into the reported misconduct which, if proven, would attract the most severe penalties.

b.    Investigation of any behaviours which may raise fitness to practise concerns for students or staff.

c.    Investigation of the behaviour of students with limited time left in their studies.

199Providers should also be mindful of the principle of minimising the need for students to repeat difficult information. 

200It may be possible for the same investigator to gather information and evidence about the reports made by different students. This is likely to reduce the impact on all students of having to repeat themselves. Provided the investigator has carried out the investigation from a position of neutrality, has not only sought out evidence that corroborates one version of events,  and has not expressed conclusions about what may have happened, this would not automatically give rise to a reasonable perception of bias. Providers can mitigate any perception of bias in such an investigation by requiring that a different member of staff or panel makes the decision about any disciplinary findings.

201Any new reports, whether additional reports about the same responding student or counter reports, should prompt the provider to consider revising its assessment of risk and the mitigating actions previously identified.

Concluding the investigation stage

202Investigators will need to exercise judgment to decide when enough information has been gathered. The length, depth and breadth of an investigation should be proportionate to the complexity of the behaviour being investigated, the severity of the penalties the misconduct could attract if found proven, the severity of the impact on the reporting student and the continuing risks identified. Investigators should use their judgment about the potential value of pursuing different lines of enquiry, weighing this against the impact upon all students concerned of prolonging an investigative process. It is good practice to document reasons for deciding not to seek out particular information, especially where the investigator decides not to interview a witness that has been identified by the reporting or responding parties.

203Investigators must carefully balance the need to minimise the number of times either reporting or responding students are asked to describe what has happened, with the need to explore any gaps or contradictions in the information that has been gathered. A careful exploration of the evidence at this stage may reduce the need for detailed re-examination via a hearing.

204It is good practice for investigators to prepare a report summarising the information that has been gathered in a neutral way. It may identify any broad areas of agreement as to what happened. The report may state in factual terms where there are gaps or contradictions in the information gathered, and where there is evidence which appears to support the reporting and/or responding student’s accounts.   The report may draw attention to the quality of information, for example, whether it was obtained close to the time of the incident(s) described, whether it could have been amended or edited.

205The investigation report should be in a form that can be shared in full with the responding student. Providers should also consider whether it will be beneficial to share it with the reporting student. Where there are multiple reporting students, it may be appropriate to share only sections of the report that relate to each reporting student with them.

Proceeding to making a decision

206At the end of the information gathering stage, a provider should usually move onto making a decision about whether the responding student’s behaviour did not meet the expected standards. Occasionally an investigation may result in the provider exploring some alternative form of informal resolution, where the reporting and responding students have indicated that this would be acceptable.

207It is a matter for each provider to determine, in its particular context, who has responsibility for deciding whether a student’s behaviour is in breach of its regulations and if so whether to apply a penalty. This may be the investigator, a separate individual decision-maker, or a decision-making panel.

208Where a provider has appointed an external investigator, the investigator should not formally determine that a student has breached the provider’s disciplinary regulations, nor apply penalties. The provider must maintain ownership of these decisions. In these cases, it is important that the external investigation report does not appear to make formal findings that the responding student has breached the provider’s standards of behaviour. The report may include recommendations for a member of staff or panel acting as the decision-maker to consider.

209In our Good Practice Framework: Disciplinary Procedures (paragraphs 109 – 114), we explain that many providers give specific staff roles the power to take decisions regarding minor disciplinary cases at a local level. Such an approach gives providers the flexibility to deal with cases in a prompt and proportionate way.  But providers should exercise caution when applying this approach to cases related to harassment and/or sexual misconduct.

210It is common practice to establish a panel to make decisions about any disciplinary matters that could attract a severe penalty.  A panel provides the opportunity for a diversity of perspective and experience to be brought to the decision-making process. By design, having more than one decision-maker encourages discussion to test the soundness of the decision-making rationale.

211Holding an oral hearing before a disciplinary panel is also a common practice, borrowed from well-established legal custom. For any disciplinary decision to be reached fairly, the decision-makers must “hear” both sides. It is commonly accepted that being able to present one’s position orally, either in person or virtually, in addition to making written submissions, is beneficial to the parties and to the decision-maker. A hearing allows for more immediate and tailored question and response than the same process in writing would entail. It allows responding students the opportunity to test the evidence against them. In an oral hearing, each witness, including reporting and responding students, may present their own information as they choose, unfiltered by the perception of the information-gatherer. Panel-members at oral hearings may consider how a person’s ability to answer questions at an oral hearing supports the credibility or veracity of their account.

212However, there are also reasons why holding an oral hearing can be very challenging in cases related to harassment and sexual misconduct. Any student may prefer not to present information orally to a panel, and this may not be appropriate for some disabled students or students affected by anxiety or communication difficulties. Having to repeat information that has already been shared may re-traumatise individuals. Being subjected to questioning can also be very difficult. An oral hearing can be an opportunity for further harm to be caused by the interactions between students.

213At the end of the information gathering stage, providers must decide whether to hold an oral hearing before reaching a decision, or whether it is appropriate to reach a decision without a hearing. The investigator may make this decision about process steps, although involving another member of staff in that decision can help address any perceptions of bias.

214Examples of when a provider may decide not to hold an oral hearing include:

a.    When a responding student accepts that their behaviour fell short of the expected standards. Providers should take care to ensure that the student fully understands what they are admitting to. Providers must also give responding students the opportunity to provide details of any mitigation. It is important to ensure that the responding student is fully aware of the consequences of accepting that their behaviour fell short of the expected standards without the benefit of a hearing. For example, the student should be told whether and how this will be recorded on their student record, and whether it will be taken into account in future disciplinary or fitness to practise proceedings.

b.    When it is clear from the information gathered during the investigation stage that the reported behaviour does not amount to a breach of the provider’s expected standards of behaviour, that is, there is no case to answer.

c.    When the reported behaviour, if proven, would attract only minor or moderate penalties.

d.    When the responding student does not want to take part in an oral hearing.