New supplemental guidance will help universities manage complex misconduct cases

The new guidance (34 pages / 319 KB) builds on 2016 guidance by higher education representative body UUK and Pinsent Masons. Since its initial publication, the 2016 guidance (23 pages / 4.2 MB) has been widely utilised by institutions, with the Office of the Independent Adjudication for Higher Education (OIA) referencing the guidance in its Good Practice Framework for handling disciplinary procedures.

Over time, certain areas have been identified where further work and practical assistance is needed. The supplemental guidance focuses on these areas, incorporating insights from recent case law and offering practical case studies.

Stephanie Connelly, higher education expert at Pinsent Masons, said: “While it is important to recognise the uniqueness of each case, we hope this new resource will assist universities in effectively manging complex misconduct cases and give them greater confidence in doing so.”

Higher education institutions cannot judge whether a criminal offence has been committed. However, they can make a finding on whether the conduct in question is a breach of their own code of conduct.

“Universities have made substantial strides in implementing the recommendations set out in the 2016 guidance. While some institutions are further on in their journey, there remains potential across the sector to further enhance and build upon this progress,” Connelly said.

The new guidance includes eight key areas which can be challenging and provides practical advice and case studies for universities and colleagues to refer to during their processes. Each case study is framed in a way that is designed to identify the possible responses to a specific situation and focuses on one or two aspects of that potential response.

The guidance also considers which procedures a university or college should follow in situations of alleged misconduct, for example disciplinary and/or fitness to practice, as well as some of the factors that should be considered when determining whether precautionary action should be taken while investigating allegations of misconduct. The update also provides practical guidance on carrying out investigations to ensure compliance with procedural fairness, making sure that the gathering and sharing of information is done in a lawful way.

Building on recent case law in this area, the guidance sets out good practice for hearing processes, including circumstances where a reported student may be granted permission to have legal representation, and ways in which institutions can adjust these processes for reported parties and witnesses to ensure that they are fair.

It is important to remember that the guidance does not constitute legal advice and it remains crucial for each matter to be assessed and responded to on a case-by-case basis and in compliance with each institution’s policies and procedures.

The latest guidance, written with support from a working group including representatives from Pinsent Masons, also invites reflection on sector developments, including the Office for Students’ statement of expectations and the practical steps they expect universities and colleges to take in tackling harassment and sexual misconduct. This is expected to lead to further regulation in this area.