How to take care of complainants in cases of staff student sexual misconduct

The main reason students report staff sexual misconduct is to protect themselves and others and to be able to continue with their studies. This simple fact should be centred in any institutional response to address staff sexual misconduct in higher education.

Unfortunately the standard way sexual misconduct cases are carried out are centred on the disciplinary case against the reported staff member (or student) rather than on the academic and support needs of those reporting misconduct, who are frequently left in the dark.

This week has seen a case at the University of Kent – reported in Times Higher Education – in which students who came forward with complaints of sexual misconduct against a member of staff believe the university has not offered them sufficient support as complainants.

What is reported in the press is inevitably only one part of the story and we can’t draw conclusions about the specifics of the case itself. But it is a salutary reminder that conducting an investigation into potential misconduct following a complaint involves not only giving the accused staff member a fair process, but ensuring those making the complaint are kept informed, offered pastoral support, and especially where a complaint is partially or fully upheld, are offered the appropriate remedy. If these steps are not taken, complainants may be left feeling uninformed and unsafe – and may advise other affected students that complaining is not worth the risk.

Privacy and safety

For a student making a complaint about a staff member the stakes and sense of risk could not be higher. While a complaint is being investigated, it’s appropriate that the complainant(s) are informed of the measures that are being taken to secure their safety – and that the measures themselves are commensurate with the severity of the accusation and do not, for example, involve putting others at risk.

The new Worker Protection Act puts a duty on employers to prevent sexual harassment from occurring. If a university has formal knowledge that an individual has sexually harassed multiple students and staff, failing to prevent them from harassing others will be in breach of this act.

There is an ongoing battle between the responding party’s right to privacy and the reporting party’s right to safety and to know what actions have been taken following their complaints. Previously, standard practice was that reporting parties would be given no information at all about the disciplinary case against the responding party. The 1752 Group has been pushing back against this consensus. It is now accepted that reporting parties should be told of any measures that affect their safety. However, privacy concerns still tend to override any rights of the reporting party in relation to sharing disciplinary sanctions.

And yet, as Eversheds Sutherland – a highly respected law firm in the HE space – has argued, potentially relevant lawful grounds for sharing this information (although this would need to be assessed on a case-by-case basis) may be that it is:

in the legitimate interests of the reporting student – for example, to understand the conclusions reached by the higher education provider on their report or complaint or in the interest of safeguarding their health, safety or wellbeing; and/or in the legitimate interests of the higher education provider – in terms of dealing transparently with reports or complaints of this nature and/or ensuring that its systems and processes for managing and regulating this area are robust, effective and fit for purpose.

Knowing what happened as a result of your complaint is a crucial principle of procedural justice – the idea that people feel that their case has been heard fairly, regardless of the outcome. This guidance suggests sharing much more information with reporting parties is possible.

Remedy and compensation

Students that complain may be offered a sum of money as compensation as part of the outcome of an investigation. It’s worth universities being aware of the alternatives when weighing up what is a reasonable offer: if students go to the Office of the Independent Adjudicator (requiring a further lengthy process), the highest level of remedy they can access is £5000 each. If students are able to take out a successful legal case (for which they would have up-front legal costs), they could be awarded a large five-figure sum.

While reporting students’ motivation in reporting is not primarily a financial remedy – rather, safety for themselves and others, financial remedy may be appropriate if they have been unable to access teaching or supervision and/or have suffered distress due to the harassment, the institutional response, or both – which is often the case.

But remedy needs to be interpreted much more widely than just money. The Office for the Independent Adjudicator’s most recent Good Practice Framework notes that in such cases:

the student who made the complaint should receive a resolution to that complaint. It is good practice to consider including at least the following information: If the behaviour is found to have had an adverse impact on the reporting student, a remedy for that impact.

The impacts of staff sexual misconduct can include loss of teaching; having to change discipline or subdiscipline, losing months – or years – of work; and losing confidence in your academic work, among other academic impacts. On top of this, personal impacts can include emotional, financial, and mental/physical health consequences such as post-traumatic stress, insomnia, and having to pay for counselling and fees/living costs for an extra year of studying.

These are the adverse impacts that remedies should address. They should include financial, academic, and pastoral remedies. They should also involve community remedies whereby steps are taken to rebuild trust and raise awareness of this issue within a department or research group affected by sexual harassment.

A sackable offence?

If a student’s complaint of sexual misconduct is upheld, there is a strong case to dismiss the member of staff on the grounds of gross misconduct. My research project Higher Education After #MeToo found that even after upheld findings of sexual harassment, staff were not necessarily losing their jobs. In this area, universities can learn from the experience of the Confederation of British Industries (CBI), which has been struggling to recover after accounts of mishandling of sexual misconduct. Warnings to other organisations were given by the ex-president, reflecting on what went wrong:

We didn’t put in place sufficient preventative measures to protect our people from those seeking to cause harm, and we didn’t react properly when issues arose as a result. […] And we tried to find resolution in sexual harassment cases when we should have removed those offenders from our business. In retrospect, this last point was our most grievous error, which led to a reluctance among women to formalise complaints.

Leaving aside the “bad apple” metaphor of removing offenders, which assumes that sexual harassment occurs in a vacuum rather than being enabled by wider cultures and norms, the CBI’s lesson is that they wish they had taken more robust action in relation to upheld cases. In staff-student cases in higher education, there is an even stronger rationale for such action , as academic staff are in a position of trust and authority. This should be considered as an aggravating factor when deciding on an appropriate sanction.

Despite this, for many students who are targeted for sexual harassment by staff, the responding party losing their job is not necessarily the outcome they want. But – to return to the point where this article began – they usually report in order to make sure that others are not targeted in the same way, and to be assured of their own safety while they finish their studies.  As such, if a staff member is unable to carry out a core part of their role – teaching and supervising students – due to safety concerns, then dismissal may be the only option. However, disciplinary panels made up of colleagues and peers of the responding staff member may be reluctant to impose such a sanction, leaving the institution in a difficult position, such as having to move the staff member into a non-student facing role, leaving their colleagues to pick up the rest of their work.

These thorny questions suggest that universities would do well to heed the lessons from the CBI and take the opportunity to review their complaints and disciplinary processes for staff-student sexual harassment before they are faced with a public scandal. This work is complex and highly skilled, but it is much more likely to go smoothly if the potential issues arising have been anticipated in advance. And there’s a much lower chance of students being traumatised by going through the reporting process.