A few days ago I shared what the Sussex/OfS judgment tells us about the OfS’s investigation process. After an excellent and informative webinar this morning by Smita Jamdar of Shakespeare Martineau, I’ve been thinking a lot more about the implications the ruling might have more broadly in universities.
The principles the High Court applied aren’t just for regulators; procedural fairness applies to anyone conducting an investigation. Mrs Justice Lieven found that the OfS had approached its decision with a “closed mind” and had therefore unlawfully predetermined the outcome. This is a natural justice problem and not just a regulatory one, and it can arise in any investigation.
Thank you Smita for encouraging me to think more deeply about this; here I’ve pulled together some of the points I took from the judgment.
Investigators inform and decision-makers decide
These two functions need to be genuinely separate and not just on paper. If the investigator (or investigation team) is driving the outcome, there’s a problem even when a different person ‘formally’ signs off the decision.
Investigation/fact-finding 🛑 Panel consideration of finding (then sanctions if appropriate).
Open minds, not empty ones
Decision-makers are allowed to know the context and they’re allowed to hold preliminary views (this is a very human thing to do). What they can’t do is have a theory or conclusion so fixed that evidence cannot change it or that it prevents exploration of other explanations or scenarios.
Evidence must be put fairly and fully
Withholding information from decision-makers, or presenting it selectively, compromises the integrity of the whole process regardless of whether the ‘right’ conclusion is reached. Transparent and documented processes are vitally important to a robust outcome.
Do your processes adhere to these principles?
My investigation training includes content on awareness and mitigation of bias, including hypotheses in your investigation plan, how to keep a reliable and transparent log of decisions to take certain actions (or not take actions), and more.
Find out more here or email jenny@campusresolve.co.uk