University misconduct proceedings

If you are under investigation by your university for allegations of misconduct, our specialist disciplinary and regulatory solicitors can provide expert legal advice and representation.

What amounts to “misconduct”?

Each university defines misconduct differently and it is important for you to have regard to your specific university’s disciplinary policies and procedures. However as a general rule, misconduct is divided into two main areas:

1. Academic misconduct
2. Non-academic misconduct

Academic misconduct relates to misconduct arising from a student’s behaviour towards their studies, such as plagiarism, falsifying data, evidence or experimental results or collusion.

Non-academic misconduct is generally defined non-exhaustively, meaning that it can catch anything that is not considered “appropriate” behaviour. This can range from damaging property or anti-social behaviour to sexual harassment or assaults.

Each university will have a range of policies and regulations which govern how students should behave whilst they are enrolled at that institution.

Is there any guidance on how misconduct proceedings should be conducted?

As misconduct proceedings are very much reliant on the individual university’s policies and procedures, it is understandable that you may be concerned about the fairness of the investigation and proceedings. The Office of the Independent Adjudicator for Higher Education (OIA) is an independent body set up to review student complaints about higher education providers. It has produced a good practice framework for disciplinary procedures and although this is not binding, the OIA has a specific remit to investigate complaints by students, including those aggrieved by a university’s handling of misconduct proceedings, meaning universities should take this into consideration when conducting such proceedings.  This highlights the following key points to be considered by universities when undertaking misconduct proceedings:

• The core principles of good practice are accessibility, clarity, proportionality, timeliness, fairness, independence, confidentiality and improving the student experience.
• Fair procedures should follow the principles of natural justice, meaning the decision-makers must be independent; each side must have a fair hearing and the process must be completed without delay.
• The student should be given the chance to appeal once a decision has been made. They then have the opportunity to appeal to the OIA if they are still unhappy with the way the process has been handled.

What is the process once a complaint is made?

The specific process is governed by each university’s policies and procedures. However, generally speaking, an independent investigator should be appointed to investigate the complaint.

By investigating the complaint, the investigator should:

1. Speak to the complainant and the person to whom the complaint was made.
2. They should refer to the relevant university policies and codes of conduct that govern the behaviour in question.
3. They should then interview the complainant to gain a full account of what they are complaining of.
4. Following that, the accused student should be interviewed to obtain their version of events.
5. If necessary, other evidence should then be obtained, such as other witnesses being spoken to and documentation being collated.

The investigator will then compile an investigation report, which should be provided to the student in good time before the misconduct or disciplinary hearing. This should provide the student with sufficient information to ascertain:

• What allegations are being made against them, with reference to the relevant codes of conduct and policies;
• What the complainant has said about the allegations;
• What other witnesses have said about the allegations;
• Any other documentation that serves as evidence in support of the allegations;
• Any other evidence that has been obtained that throws doubt on the allegations.

Following the investigation, a decision-maker will decide whether the case needs to proceed any further. If they decide it does not need to, they may take no further action or a warning could be given to the student about their behaviour. This very much depends on whether the evidence obtained supports the allegations.

If the evidence obtained tends to support the allegations, the case is thereafter likely to proceed to a formal disciplinary hearing. This should be presided over by an independent and impartial decision-maker. Here, the investigator will present their case, including calling any witnesses or presenting any other evidence that they have obtained during the course of their investigation. It is important for investigators to remember that their role is inquisitorial, meaning that they should present the evidence in a fair way, not trying to “persuade” the decision-maker to come to any particular decision. Once the investigator has presented the case, the accused student should be given the opportunity to respond to the allegations and present any evidence in their defence. The decision-maker will then come to a decision. It is imperative that their decision is well-reasoned, to enable the student to understand why they have come to that decision and whether any grounds for appeal exist.

If the student is unhappy with the decision and wishes to appeal, it is important that they act quickly. Many appeals must be made in writing within 10 working days of being notified of the decision. A new Panel will consider the appeal, either in writing or by way of re-hearing. The Panel usually has powers to confirm, quash or vary the original decision. There is therefore a risk that a student could receive a higher penalty upon appeal. Should the student still be unhappy with the decision, they could either make a complaint to the OIA or bring judicial review proceedings. These are complex measures that should not be undertaken without legal assistance.

Are there any interim measures that the university can implement whilst the investigation is ongoing?

Generally, universities do have the option/power to implement interim measures/restrictions on the accused student whilst the investigation is ongoing. This could include restrictions on where the student goes on campus, but could also result in a full-scale suspension from the university/their studies. The university’s regulations and procedures should be clear as to when it is appropriate to implement interim measures, so it is important for the student to have regard to these if they are applied to them. It is sometimes possible to persuade the university to impose less onerous restrictions than it was originally considering, particularly if what the student is proposing is workable.

There is also often an appeals process in respect of interim measures, so it is important for students to consult the relevant disciplinary procedure of their university to ascertain what this is and how it can be exercised.

How long should an investigation take?

There is no set time limit for an investigation, although one of the core principles of good practice is timeliness, with the OIA in its good practice framework advising that they should normally be completed within 90 calendar days.

It is of course not always possible to adhere to that time limit, but if that is the case it is imperative that the university keeps the student informed. Usually if there is a criminal investigation into the same alleged conduct, the university will pause its investigation until the criminal investigation/prosecution has completed. However this does unfortunately mean that university misconduct proceedings can be hanging over a student and interim measures can be imposed on a student for a significant period of time.

Are there any other implications of misconduct proceedings?

If the student is on a course that leads to professional regulation (and is governed by such regulations), such as medicine, pharmacy or nursing, it may be that the misconduct proceedings by the university can lead to separate fitness to practise proceedings by the university. This is separate from the university disciplinary procedure, and can have serious consequences for a student’s career, ultimately preventing them from entering their chosen profession.

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University misconduct proceedings can have far-reaching consequences, stretching further than just a student’s university career. Further, this is a developing area which universities are not always well-equipped to deal with. Universities sometimes lose sight of the impact these sorts of proceedings can have on the accused student, particularly where they are ongoing for some time. It is therefore imperative that you obtain legal advice, to ensure your interests are protected and universities are held to account in properly abiding by their policies, procedures and regulations.

Legal advice at the outset of an investigation can be incredibly beneficial in and of itself and does not commit you to having ongoing legal representation (although this is often recommended).

To arrange a preliminary consultation or to find out how we can support you, please send us an email, complete our online enquiry form or call us on 020 3627 5739.