Universities: ‘no need’ to rush to amend disciplinary procedures after landmark ruling

It comes after a former student, expelled from his university following a disciplinary process involving allegations of serious sexual misconduct, successfully sued the institution for a breach of contract earlier this year. At the High Court, the student claimed that the university’s disciplinary process was tainted by breaches of natural justice because the disciplinary committee and the subsequent discipline appeal committee both admitted hearsay evidence from the complainant, without providing an opportunity for cross-examination.

Higher education legal expert Stephanie Connelly of Pinsent Masons said: “HEIs need to be cautious about making any urgent changes to their procedures as the relevant decision was only handed down on 16 May. It is still unclear at this time whether this 2023 decision will be the subject of any appeal.”

“It is also important to note that this decision is not necessarily one about process and the wording of procedures, but rather about natural justice and whether or not there would be reasonable grounds to submit evidence from a reporting student (or other witness) without them being present at a disciplinary hearing – and the weight afforded to that evidence in any decision-making by a disciplinary panel,” Connelly said.

She added: “It is therefore very much about the appropriate training of disciplinary panels and those involved in disciplinary processes, and how they should properly assess and test the evidence before put them – rather than this being a strict process point requiring the need to urgently revise procedures.”

Handing down an order to set aside the disciplinary committee’s decision to expel the student, Mr Justice Freedman found that the university’s disciplinary process had been unfair and unreasonable. He said the disciplinary committee’s admission of evidence without the opportunity to question the maker of the hearsay statement was contrary to natural justice – as was the failure of the discipline appeal committee to correct the mistake.

The judge made clear that the court would not, and could not, make findings about the allegations of sexual misconduct against the student. He said: “The conclusion here is limited to the fact that the findings occurred due to the admission of the hearsay evidence and/or to attaching unfair and unreasonable weight to the hearsay evidence.”

“In the circumstances of this case, without such evidence being properly tested, it was not possible to find the case against the [student] proven, such was the nature and extent of the inconsistencies and contradictions which required to be tested,” Mr Justice Freedman added.

Julian Sladdin of Pinsent Masons said: “This ruling follows an earlier key judgment for the higher education sector from 2020, which set guidance on the issue of whether university students have a right to legal representation in disciplinary proceedings. That decision confirmed that whether or not legal representation is required should be determined by consideration of fairness in the circumstances of each particular case.”