CASEWORK NOTE COMPLAINTS RELATING TO HARASSMENT AND SEXUAL MISCONDUCT

Each year we deal with a small but growing number of complaints from students related to harassment and sexual misconduct. This casework note discusses some of the issues and learning points we see arising from these complaints. The case summaries on our website also illustrate some of these issues.

Who complains and what are the complaints about?

Some of the complaints we review are from students who have been reported for harassment and sexual misconduct. Most of these complaints have been from male students. These complaints often relate to the outcome of a disciplinary process, with the reported student asking us to review the process, findings of misconduct and decisions about penalties. The disciplinary procedures section of our Good Practice Framework sets out guidance for providers on designing and operating these procedures.

We also review complaints from students who have reported the behaviour of other students or members of staff to the provider. Most of these complaints have been from female students. The complaints commonly raise issues about the way the provider handled their report, and our review therefore focuses on what has happened since the disclosure. The handling complaints and academic appeals section of our Good Practice Framework includes some additional guidance on complaints about the behaviour of staff or other students.

A small proportion of the complaints we have reviewed are brought by students who experienced harassment or sexual misconduct from someone outside their providers’ staff or student communities. These complaints typically raise concerns about how the provider supported the student, and how the provider considered the impact of the experience on their studies.

The complaints students have brought to us about harassment and sexual misconduct are usually complex and show how challenging it can be to conduct a thorough investigation in which all parties feel heard and supported. The incidents students describe are often very serious and have long lasting impact. The complaints show how a student’s distress can be increased by processes that are not seen to be fair, or when reasons for decisions are not clearly explained.

Common issues and learning points

It is good practice for providers to have clear, accessible and well-advertised routes for students to raise concerns about harassment and sexual misconduct, and for the provider to make sure staff are familiar with those processes so students can be properly signposted. We welcome the increased focus in the Office for Students’ regulatory conditions for registered providers on easy access to information and on staff training.

Both reported and reporting students need clear information about the sources of support available to them and the process that will be followed to consider their conduct or to respond to their complaint about the behaviour of another student or staff member. A provider has the same responsibilities towards each of the students involved.

Delay is a common feature of the complaints that we uphold from both reported and reporting students, particularly where the delays haven’t been well managed by the provider or have had a wider adverse impact. Complaints about harassment and sexual misconduct can be complex to deal with. A provider may need to consider the conduct of another student or member of staff under a disciplinary or HR process before it can make a decision on the complaint. An ongoing police investigation may mean the provider has to suspend its disciplinary process until any criminal proceedings have been completed. There may be other valid reasons for an investigation to take time. But, as far as possible, it’s important that providers focus on dealing with cases involving harassment and sexual misconduct in a timely way. It can be very distressing for both parties if the procedures become prolonged. It is good practice for providers to manage students’ expectations about the likely timescales involved and proactively keep them updated.

Many provider’s procedures allow for precautionary actions to be taken while a student’s conduct is considered under its disciplinary procedures. Precautionary actions can be a useful tool to manage any risks associated with the case, but risks must be properly assessed and decisions recorded. The reported student should have the opportunity to appeal the decision. The risks may change over time so it is good practice to regularly review the measures in place, whether or not the student appeals.

It is our view that students shouldn’t need a legal representative to be able to navigate a disciplinary process. But providers need to consider any requests to be supported by a legal representative on a case-by-case basis. If the case is complex or the potential consequences for the student are serious, there will not normally be a good reason to refuse. In our experience, the involvement of legal representation can result in a more adversarial approach. It is important that Chairs of disciplinary panels are well trained and confident in managing the conduct of any hearings in a way that is appropriate for an internal disciplinary process.

Both reported and reporting students can find the process of an investigation challenging and it’s important for providers to make sure everyone is treated fairly and with kindness. The principles of compassionate communication can be a useful tool for providers to guide how they interact with students. In some of the complaints we have seen, reporting students feel that they were not believed, or say that the questions they were asked seemed victim-blaming. Some reported students complain that they were pre-judged or had to prove their innocence. It’s important that investigators and panel members are properly trained to ensure each party has a fair opportunity to explain their experience and perceptions. For example, questions in a panel hearing should normally be asked via the Chair. Where a witness doesn’t attend a panel hearing, the provider should think carefully about how the panel and the reported student can still be given an opportunity to test their evidence.

We uphold some complaints because it’s unclear how the provider reached its decision. It is good practice for a provider to explain how it has weighed the evidence, including any conflicting accounts. Clear reasons for its decision and any penalty applied should be given.

We uphold complaints from reporting students where the provider didn’t give them a proper outcome to their complaint, or where they weren’t provided with a suitable remedy that addressed how they had been affected. The guidance in the Good Practice Framework referred to above discusses what information it is good practice for providers to consider sharing with the reporting student.

It is also important that the reporting student has a proper opportunity to raise any concerns they have before the provider makes its final decision on their complaint and issues its Completion of Procedures Letter. This will usually be via the review stage of the formal complaints procedure. Usually, reporting students may not directly appeal the outcome of someone else’s disciplinary process. It is possible that a reporting student could raise a concern under the complaints process, for example about evidence that was not gathered, that could lead a provider to consider re-opening a disciplinary process. More commonly, reporting students’ complaints will require a provider to reflect on how that student has been supported since making the disclosure. Where the provider identifies shortcomings in the way it dealt with the complaint, it should think about how to put that right for the student.

Our Recommendations

It is not normally our role to reinvestigate or consider the matters afresh. The briefing note on our website includes more information on our approach to complaints involving sexual misconduct and harassment.

If we uphold or partly uphold a complaint, we think carefully about a remedy that is practical and proportionate, taking account of what the student has said. We will often make a Recommendation to provide a remedy for the individual student in combination with good practice Recommendations that aim to prevent any problems we’ve seen with the way the provider handled the case reoccurring in the future.

For reporting students, we will often recommend a financial remedy. There may be little benefit to a reporting student in the provider re-running its complaints process, especially where the student has competed their studies, although we may recommend this if we think it’s necessary and it would be reasonable to do so. But students may feel that any benefits are outweighed by the emotional impact of repeating the process or further extending the time taken to reach a resolution to the complaint. Reporting students often value an apology and assurances about what the provider has learned from their experience. We have not recommended that a provider should re-run another student’s disciplinary process as an outcome to a complaint from a reporting student.

For reported students, if we decide that there were flaws in the provider’s handling of their disciplinary case that mean the outcome is unsound, we will normally recommend that the provider re-hear the case. This is because it is not normally our role to substitute our judgment for that of a provider’s disciplinary panel.

While we will make Recommendations for a provider to re-hear a case where appropriate, there can be inherent difficulties in needing to re-run a process, such as the willingness of witnesses, including the reporting student, to participate in the process again. It is important for all concerned that providers focus on getting it right the first time.