Lynne Riach
- Senior HR Business Partner
Insights | Employment
Impartial expertise is vital to student conduct disputes
28 November 2024
Human Resources (HR) practitioners are well-versed in handling complaints involving the employee/employer relationship. However, for those working in universities or colleges, a misconduct investigation often involves a student – and this throws up a different set of challenges.
With their knowledge and experience of sensitive conduct matters, HR practitioners are well placed to support, but certain additional skills and experience can become crucial.
Higher education institutions must carefully consider the health and wellbeing of students during an investigation, just as they would with employees. And, while universities may not be paying students to be there like they would an employee, they are enrolled students and a duty of care remains. There is also still a contract that obliges universities to provide access to teaching and facilities.
Rather than disciplinary policies and procedures based in employment law, education providers usually rely on students signing a code of conduct that’s been created in-house – and these can differ from one institution to another. If an allegation is upheld, it will be senior management, potentially even the board, the university court or the principal, who decides the punitive consequences.
Because there’s no universal way to handle student conduct issues, many staff may lack confidence in these dealings, either due to a lack of specialist training or clear guidance. This is far from ideal, as a failure to safeguard the interests of either the reporting or reported student could have significant financial, reputational, regulatory and human costs.
That’s why when it comes to complex or sensitive cases, organisations which don’t feel adequately prepared should consider specialist advice and support or training.
A trauma-informed approach
A misconduct investigation can be traumatic for both the reported and reporting student, so the organisation should do all it can to eliminate stress throughout the process. Training staff in how to use a “trauma-informed” approach, or bringing in an expert, can help avoid causing unnecessary anxiety.
Understanding the effects of trauma on how someone remembers events is a good example. In a traumatic situation such as sexual assault, it’s common for a survivor’s brain to shut down to protect them – this is known as dissociation. That’s why it’s important not to assume that if someone’s story changes from one day to the next, that they must be lying. It could, in fact, be due to trauma.
Feelings of shame and guilt can have implications on disclosure. Parties may try to hide these feelings by omitting important information when questioned. This possibility can be mitigated by learning how to carefully structure an interview, and word questions to ensure the evidence is properly explored but avoid implying that they are not believed.
With students, especially if they are young people, universities need to understand they may have experienced recent trauma as teenagers. In some circumstances, it might be helpful to obtain a medical report to help understand whether there is a health reason behind any concerning behaviours displayed during the investigation. Taking a trauma-informed approach means considering the wider context and being particularly careful how exactly you “test the evidence” with those who may be vulnerable.
Digital presence and the online world are major parts of young people’s lives. Evidence of abuse or misconduct may take the form of social media posts, snapchats, messages – these experiences are valid, and their impact needs to be considered carefully in any investigation just as any in-person experiences are.
Fair and impartial
Universities need to make the reporting students feel supported, while at the same time remembering the reported student is innocent until proven otherwise. Regardless of the nature of a dispute though, education providers should not focus their support and understanding solely on the reporting student, as its responsibility is to everyone involved. That includes the person accused and people who might be accused – perhaps falsely – in future. Investigators must spend as much time, energy, and effort gathering, weighing up and presenting evidence for both sides – even if that evidence indicates that the reporting student is mistaken or even lying.
It is vital to ensure there is a transparent process for both the reporting and reported students which is discussed with them from the get-go, and clearly communicated throughout.
To ensure impartiality, support and advocacy for the reporting and reported students must be provided by separate people and separate to the investigator. That way, the reporting student can feel believed without the reported student feeling disbelieved, and without the investigation appearing biassed. Both parties should be able to have faith that the investigator will comprehensively explore all angles rather than merely seek to prosecute the case against, or defend, the reported student.
Access to campus
I am often asked whether a reported student should be removed from campus pending the outcome of an investigation. It will not always be necessary or appropriate to do this. The nature of the allegations, level of risk and individual impact on both the reported and reporting student must all be balanced.
In some cases, particularly if an allegation is limited to one particular student, it might be possible to avoid removal but still ensure separation between the two parties. This involves imposing or agreeing to certain restrictions, such as not attending social events and, for certain subjects, only attending online teaching.
If removal from campus is considered the best option, this could have a significant impact upon the student’s learning experience and steps should always be taken to mitigate this. In every case, avoiding knee jerk reactions, considering the impact upon all students, alongside conducting a documented risk assessment and reviewing this regularly are the best steps forward.
At every stage of a conduct investigation, the most important thing for an organisation is to ensure all voices are heard. Importantly, they can’t be construed to be acting in a way that is biassed towards either party. The best way to do that – especially in a complex case – is often to appoint an independent, expert investigator. There may be hesitancy, especially with stretched resources, but universities could land themselves in hot water if investigations are mishandled or new conditions are not properly met from the outset.
This article was featured in WonkHE on the 26 November 2024.
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