Education and Safeguarding

Most educational institutions have a disciplinary policy (although it may be called something else) to which all students are subject, including:

• Primary and secondary schools (whether state or independent / fee-paying);
• Further education providers such as sixth forms and colleges; and
• Higher education providers such as universities and professional training providers.

Where these FAQs refer to ‘education providers’, it can be taken to mean all or any of the above.

Just like professional misconduct in the workplace, student misconduct can be described as anything done by a student which falls short of what would be proper in the circumstances. Whether in the form of regulations or otherwise, the education provider usually prescribes detailed policies containing rules for the conduct of students and breaches of those rules are disciplined as misconduct accordingly.

Student misconduct is usually split into two categories by education providers; academic misconduct and non-academic misconduct.

Examples of non-academic misconduct include:

• Physical – e.g. assaulting or threatening to assault others;
• Sexual – e.g. any conduct for the purpose of sexual gratification or performing inherently sexual acts without consent, sharing private sexual images of another without consent, indecent exposure, sexual harassment, making comments or sending messages of an inappropriate sexual nature;
• Behavioural – e.g. abuse or threats to another person, bullying, harassment, discrimination, disruption or disorder;
• Relating to property – e.g. causing damage, taking another’s property without permission, unauthorised entry or inappropriate use of premises, misuse of equipment;
• Illegal possession – e.g. drugs, weapons;
• Reputational damage – e.g. any conduct which has caused or may cause serious damage to the reputation of the education provider; and
• Convictions – e.g. receiving a criminal conviction whilst registered as a student, failing to disclose a relevant criminal investigation or conviction.

Academic misconduct typically refers to actions from which a student gains or attempts to gain an unfair academic advantage, or assists others in gaining such an advantage. Examples include:

• Plagiarism – using, without acknowledgement, another person’s work and submitting it for assessment as though it were one’s own work.
• Commissioning – arranging for another person (or company) to produce a piece of work and submitting it for assessment as though it were one’s own work.
• Collusion – working together with another student (without authorisation) to produce a piece of work and submitting it for assessment as though it were completely one’s own work / without acknowledging the other’s contributions.
• Falsification of data – fabricating the results of laboratory, field-work or other forms of data for a piece of work submitted for assessment.
• Personation – assuming another person’s identity with intent to deceive or gain an unfair advantage in relation to a piece of work submitted for assessment.

Each education provider has a different set of policies and these will need to be examined in detail to understand the next steps in the process. If you have not been sent these, ask for them straight away.

Generally, an initial investigation will take place and this may involve an interview of you by the relevant disciplinary officer. The outcome should then be communicated to you as soon as the investigation is complete and, if the education provider decides to proceed to a disciplinary hearing / meeting for the evidence to be examined, formal allegations should be put, the evidence disclosed to you and a date for the disciplinary hearing / meeting set.

Receiving correspondence regarding an impending disciplinary process is stressful. You should consider making use of the education provider’s support services if necessary, though please be aware that anything said to student welfare officers is not necessarily confidential (unlike discussions with lawyers).

Meticulous preparation is crucial. You will need to determine whether you are admitting or denying the misconduct on the basis of the evidence that the education provider is relying. The burden of proof should always be on the education provider to prove the allegation/s against the student, with the standard of proof being on the balance of probabilities (i.e. considered proved if it is more likely than not to have happened).

If you are denying the misconduct, you should prepare a statement setting out your account and possibly obtain statements from other witnesses. You might also consider obtaining evidence from a relevant expert. The education provider will likely ask for any evidence in your defence to be sent to them in advance of the disciplinary hearing / meeting.

Even where there is evidence to suggest that you have committed misconduct, can it be fairly taken into account by the disciplinary panel? For example, does it amount to hearsay evidence, and should less weight be placed on it by the disciplinary panel as a result? Was it obtained in fair circumstances; is there any other reason that the evidence cannot be safely relied upon?

In our experience, education providers can sometimes brush over such arguments and/or assert that because the process is not a ‘legal’ one, they need not therefore observe the rules of evidence that would typically apply in a court of law. Whilst this is strictly true, such rules have been built up over many years and are applied by many disciplinary panels (for example in the education or health sectors), ensuring fairness to all parties in the determination of such cases.  Students have a right to a fair hearing of the matters alleged against them and having regard to concepts applicable in more formal settings is not, particularly in serious cases, an inappropriate approach for institutions to be asked to take.

We advise obtaining credible character references from persons of good standing and the collation of a dossier of personal accolades, achievements, certificates, awards or other evidence of a student’s good character. Such preparation can assist in a student’s defence to misconduct or in mitigation when the panel are considering which penalty to impose.

The first question for students should be “can I instruct a lawyer to represent me?”

It is usually the default position, particularly with higher education providers, that students are not entitled to legal representation unless there are exceptional circumstances. We have however frequently argued (and often successfully) that a student should be entitled to legal representation, often by demonstrating that it will assist with the efficient progress of proceedings.

Irrespective of the education provider’s decision as to whether it will allow legal representation at the disciplinary hearing / meeting, instructing lawyers to assist with preparation of a defence or mitigation and submissions to the education provider can be invaluable.

Whilst elements of the procedure differ between education providers, the common process is:

• The disciplinary officer will open the case on behalf of the education provider by reading the facts and summarising the evidence to the panel;
• You will be asked whether you admit or deny the allegation/s;
• If you admit the allegation/s, the panel will consider which penalty to impose and should provide you with an opportunity to make a plea in mitigation;
• If you deny the allegation/s, the disciplinary officer may call witnesses to give live evidence and should allow you or your representative to ask questions of them. You should then be entitled to give live evidence and call your own witnesses, including any experts. There may be an opportunity for closing speeches. The panel will then consider whether the allegation/s have been proved and, if so, consider which penalty to impose and should provide you with an opportunity to make a plea in mitigation.

The disciplinary process for universities can sometimes involve a secondary ‘fitness to practise’ stage if the student’s programme is subject to such regulations. These regulations ensure that students meet the professional standards of conduct for awards that lead to a professionally recognised qualification, such as those in medicine, social work, dentistry, pharmacy and initial teacher education.

Breaching a university’s general student conduct regulations can often lead to a concern that the student’s fitness to practise may be impaired. This will trigger a separate procedure, typically involving a fitness to practise committee who will review the matter once / if misconduct is found proved by the university. There can be serious consequences if your fitness to practise is found to be impaired, usually preventing you from being able to pursue your chosen profession.

It will inevitably be a deeply distressing experience for the student and the parent(s) when a school is considering exclusion, whether on a temporary or permanent basis. There are different rules and considerations which apply to independent schools and state schools. Please see our blog on the subject for further information.

Issues of safeguarding are often intertwined with serious disciplinary action against a student aged under 18. This can be a complex area, so please consider seeking specialist advice.

The education provider will usually have provisions in its own policies for appealing against a decision or penalty, with a time limit to submit the appeal or review request. This will not necessarily take the form of another hearing / meeting. You should check the provider’s disciplinary policy for further information.

If all internal appeal processes have been exhausted, a common option for students at higher education institutions is to complain to the Office of the Independent Adjudicator for Higher Education (“OIA”). Registered students at providers who are members of the OIA’s scheme can submit a complaint about anything their provider has done or failed to do, including the final decision of the provider’s disciplinary or appeal body, provided that the internal process has finished and the complaint is submitted within the time limit of 12 months since the provider’s Completion of Procedures letter.

There are other legal options available, such as a judicial review against the provider’s decision, but going down this route should only be considered following legal advice, given that it can amount to a complicated, lengthy and (often) expensive process. Please bear in mind that the time limit for a judicial review starts from when the student is issued with the Completion of Procedures Letter. A judicial review claim must be made promptly and in any event not later than 3 months after the grounds to make the claim first arose.