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Pembroke

Appendix C

Formal procedure for consideration of cases of student on student harassment and sexual misconduct

 

1.         Glossary

 

In this procedure the following terms shall have the meanings set out below:

 

Code of Conduct    The Code of Conduct for Students in respect of Harassment and Sexual Misconduct, as set out in Appendix A.
Complainant            A student who has made a complaint under this procedure
Working Day            Any day except weekends, public holidays and any other day when the University Offices are closed
Respondent             A student about whom a complaint has been made under this procedure
Student                     A matriculated student following a course leading to the award of a degree, diploma, or certificate of the University

 

2.        Scope of procedure

 

2.1.     This procedure applies where a student wishes to complain that the behaviour of another student contravenes the College’s Code of Conduct in respect of Harassment and Sexual Misconduct.

 

2.2.     Pembroke College has a general Complaints Procedure under which a student may raise other types of complaint, including a complaint about the College experience or about a member of College staff (available at http://www.pem.cam.ac.uk/wp- content/uploads/2012/06/Complaints1.pdf).

 

2.3.     Because this procedure places an emphasis on reaching consensual resolution, complaints made by a third party and anonymous complaints will not normally be accepted. College Tutors and others may wish to discuss alternatives to the use of this procedure with the Senior Tutor.

 

2.4.     It is possible for a complaint under this procedure to be brought by or against two or more Pembroke College students where the complaint is about harassment arising from the same event(s). In such cases, references in this procedure to the ‘Complainant’ or the ‘Respondent’ shall be construed as appropriate as referring to more than one person.

 

2.5.     A Complainant may choose whether to raise a complaint under this procedure or under the University procedure. However, it is the expectation of the College and the University that the University procedure will be used where:

(a)  the complaint relates to sexual misconduct; or

(b)     the complaint relates to conduct occurring in the context of University societies or sports clubs; or

(c)     the Respondents include students from Pembroke College and another College.

 

2.6.     A complaint of harassment may be brought under this procedure whether or not it has been reported to the Police – but see paragraph 3.6 below.

 

2.7.     A complaint cannot be brought under this procedure if the Complainant has previously made a complaint about the same event(s) which has been dealt with under the University’s procedure.

 

2.8.     No inferences shall be drawn from the Complainant's choice of avenue to pursue the complaint, be it via the College’s procedure, the University’s procedure or the Police.

 

3.        General principles

 

Any reference in this procedure to a College officer or other named role includes a deputy appointed by that officer or role-holder to exercise the functions assigned to that officer under this procedure.

 

The College will act reasonably in considering complaints under this procedure, having regard to the individual circumstances of the case. Every effort will be made to ensure that all parties are treated with fairness and dignity.

 

The time limits set out in this procedure may be varied by the Senior Tutor for good reason, after consultation with the Complainant and the Respondent as appropriate.

 

A written decision issued in accordance with this procedure shall also include the reasons for that decision.

 

3.5.    The Senior Tutor may suspend the consideration of a complaint at any stage of this procedure and/or refer the matter for consideration under another procedure, after consultation with the Complainant and the Respondent as appropriate.

 

3.6.     Where the events which are the subject of a complaint under this procedure have been reported to the Police, the Senior Tutor will normally suspend the procedure pending the outcome of any police investigation and/or criminal proceedings.

 

3.7.     Under this procedure the Master, on the advice of the Senior Tutor, shall have power to impose any precautionary measures set out below for a period of up to 21 days, in the first instance, where the Master considers that any such measures are necessary:

to ensure that a full and proper investigation can be carried out in relation to any matter (whether under a procedure in the College, or by the University or the Police); and/or
to protect any person while any matter is being dealt with under a procedure in the College or as part of a criminal process.

 

The Master shall have the power to extend any precautionary measures imposed for additional periods of no more than 21 days in duration.

 

3.8.     The precautionary measures which the Master may impose are any one or more of the following:

(a)  excluding the person from some or all of the College’s facilities and/or premises;

(b)  imposing conditions on the person

(i)    in connection with that person’s use of the College’s facilities and/or premises or that person’s contact with other persons, or

(ii)   in such other ways as may be considered necessary; and

 

3.9.     The Senior Tutor will inform the University, through the Head of the Office of Student Conduct, Complaints and Appeals, of precautionary action taken in respect of individual students.

 

3.10.   Individual students who are subject to precautionary measures imposed by the Master under this procedure have the right to provide representations when the decision regarding precautionary action is made, or where a decision is required to be made immediately as a result of the level of risk, as soon as possible following the decision. Students who are subject to precautionary measures also have the right to appeal the decisions or ask for a review of the decision if there is a material change in the circumstances of the case. The appeal will be conducted in accordance with paragraph 6.4 of the procedure.

 

3.11.   Where, at any point during this procedure, the Complainant and Respondent have agreed to seek alternative resolution of the complaint under paragraph 5 but have been unable to reach an agreed outcome, the Senior Tutor will consider whether further action should be taken under this procedure and, if so, at what stage of the procedure.

 

3.12.   The Complainant may withdraw a complaint at any time during this procedure, by notifying the Senior Tutor in writing. Where a complaint is withdrawn no further action will be taken under this procedure, but the Senior Tutor may refer the matter for consideration under another College procedure.

 

3.13.   To ensure that there are no conflicts of interest, no person serving under this procedure as a member of a decision-making body or as an Investigator will have any previous knowledge of the case nor any material connection to the Complainant or the Respondent. The Complainant or the Respondent (or their representatives) will be entitled to object to the involvement of an individual for good cause. The holders of the offices to which this procedure refers shall appoint standing deputies to act on their behalf in the event of any conflict of interest.

 

Support and guidance

 

4.1.     The Senior Tutor will provide advice at the outset to help both Complainants and Respondents to understand this procedure.

 

4.2.     Complainants, Respondents and witnesses are entitled to be accompanied by a supporter at any meeting held under this procedure. A supporter may be a Tutor, a student representative or a friend. Complainants and Respondents will  be permitted to be accompanied by a legal representative at such meetings.

 

4.3.     Appendix D of this procedure sets out the College’s policy on the use of personal information under this procedure. A copy of the policy will normally be provided to Complainants, Respondents and witnesses to events relating to the complaint so that they understand how their personal information will be used and the limits on confidentiality. The policy indicates the College and University officers with whom the information is likely to be shared.

 

4.4.     First contact with possible student witnesses at another College will normally be made via their Senior Tutor.

 

5.        Alternative resolution

 

5.1.     Alternative resolution may be suitable for dealing with some cases that are brought under this procedure, and, wherever appropriate, Complainants are encouraged to consider seeking alternative resolution to their concerns before bringing a formal complaint under this procedure.

 

5.2.     Alternative resolution may not be appropriate for some complaints of harassment because the relationship between the parties has broken down. In such cases, the complaint will be considered in accordance with the formal procedure (paragraph 6).

 

6.        Formal procedure

 

6.1.      Raising a complaint

 

6.1.1. A Student who wishes to make a complaint under this procedure must do so in writing. The Complainant should set out details of the complaint together with details of any attempts at alternative resolution, if appropriate.

 

6.1.2. The complaint should be addressed to the Senior Tutor of the Respondent’s College.

 

6.1.3. On receipt of the complaint the Senior Tutor will give the case initial consideration and determine whether to:

refer the complaint for investigation under paragraph 6.2 of this procedure;
recommend to the Complainant that they should seek alternative resolution of the complaint;
decline to refer the complaint for investigation under this procedure and recommend to the Complainant that they should raise it under the University procedure;
dismiss the complaint because it is considered to be without merit, or, in exceptional cases, as vexatious, frivolous or malicious
reject the complaint because it does not fall within the scope of this procedure;
decline to refer the complaint for investigation under this procedure for other reasons.

 

6.1.4. The Senior Tutor will notify the Complainant in writing of the outcome of this initial consideration within ten Working Days of receipt of the written complaint.

 

6.1.5. In the event that the outcome of this initial consideration falls within paragraph 6.1.3 (b)–(f) and the Complainant is unhappy with that decision, the Complainant shall have the right to request a review of that decision. The review will be considered by a Panel appointed in accordance with paragraph 6.4.

 

6.2.      Investigation

 

6.2.1. Where a complaint is referred for investigation, the Senior Tutor will appoint a trained Investigator to carry out an investigation of the case. The role of the Investigator is to prepare a report that sets out the undisputed facts of the case and any points of difference, and makes recommendations based on the evidence and policies in place.

 

6.2.2. The Investigator shall conduct the investigation as they think fit, within the context of the general principles set out in paragraph 3. The Investigator may interview (with their consent) the Complainant and the Respondent and any other person involved in, or who witnessed, the events which are the subject of the complaint, and consider or request any other evidence which appears to the Investigator to be relevant. The Respondent will be reminded before they meet with the Investigator that they are entitled to seek independent legal advice. The Respondent will also be notified that they do not have to say anything and that no adverse inferences shall be drawn from the Respondent’s failure to attend for interview or otherwise participate in the investigation.

 

6.2.3. The Complainant and Respondent will be made aware that the College may be required to provide as evidence in any subsequent criminal investigation or proceedings in a court of law information regarding the complaint, including any admission made in the course of this procedure (and/or any made during mediation or any subsequent disciplinary proceedings) and that any admission made in the course of this procedure may also be used as evidence in College disciplinary proceedings, save that the College will abide by the confidentiality of any mediation, and anything which is said in the course of mediation will not be used in evidence in any College disciplinary proceedings.

 

6.2.4. The Investigator will offer to have individual meetings with the Complainant and with the Respondent, and may also seek to have a meeting with any witnesses (all of whom may be accompanied, as noted in paragraph 4.2). Each meeting will be minuted and the minutes agreed with those present as a correct record (or any disagreement noted). The Respondent will not be provided with a copy of the Complainant’s written complaint in advance of the meeting with the Investigator but will be provided with information on the substance of the allegation(s). The notes of any individual meetings will not form part of the Investigator’s report unless the consent of the respective party for their inclusion has been given.

 

6.2.5. Where the Respondent declines to cooperate with an investigation, the Investigator may still continue with the investigation in the absence of the Respondent’s cooperation. The Senior Tutor shall draw no adverse inferences from the Respondent’s failure to participate in the investigation.

 

6.2.6. The Investigator will aim to complete the investigation within twenty Working Days of the complaint being referred for investigation, but some cases may require longer, in which case the Investigator will keep the Complainant and the Respondent informed about progress.

 

6.2.7. The Investigator’s report will normally be released to the Complainant and the Respondent, save that parts may be redacted where the Complainant or the Respondent or any witness reasonably objects.

 

6.2.8. On receipt of the Investigator’s report, the Senior Tutor may:

(a)  recommend to the Complainant and the Respondent that they should seek alternative resolution of the complaint;

(b)     propose one or more of the resolutions set out in paragraph 6.3.1;

(c)     refer the complaint for consideration under the College’s disciplinary procedures;

(d)  dismiss the complaint because it is considered to be without merit or, in exceptional cases, as vexatious, frivolous or malicious;

(e)  decide that no further action should be taken under this procedure.

 

6.2.9. The Complainant and the Respondent will normally be notified in writing of the decision of the Senior Tutor within twenty Working Days of the receipt of the Investigator’s report.

 

6.2.10.  In the event that a decision falls within paragraph 6.2.8 (a), (b), (d) or (e) and the Complainant is unhappy with that decision, the Complainant shall have the right to request a review of that decision in accordance with paragraph 6.4.

 

 

6.3.    Resolutions

 

6.3.1. The Senior Tutor may propose a resolution to the complaint, which may include:

(a)  that the Respondent will agree to abide by a conduct agreement issued by the Senior Tutor, a record of which will be retained by the College and which may be taken into account if a further complaint is made against the Respondent under this procedure;

(b)  that the Respondent change accommodation;

(c)     with the prior approval of the relevant University body, that the Respondent will take a period of intermission from study;

(d)  that the Respondent will attend behaviour awareness training or workshops.

 

6.3.2. Both the Complainant and the Respondent must agree to the proposed resolution of the complaint. The Senior Tutor will facilitate the process of reaching agreement between the Complainant and the Respondent and will issue written confirmation of any agreed resolution(s) to the Complainant and the Respondent.

 

6.3.3. If attempts at reaching an agreed resolution are unsuccessful, the Senior Tutor shall refer the complaint for consideration under the College’s disciplinary procedures.

 

6.3.4. If there are grounds to believe that the Respondent has failed to comply with the terms of an agreed resolution, the Senior Tutor shall determine whether the complaint should be referred for consideration under the College’s disciplinary procedures.

 

6.4.      Review

 

6.4.1. The Complainant may seek a review of a decision made under this procedure.

 

6.4.2.  The review will be carried out by a panel of three persons appointed by the Master. A request for a review shall be made in writing and sent to the Master within 15 Working Days of written notification of the relevant decision (unless, for good reason, the Master permits a longer period). The request for review shall specify the grounds for review which may be only one or more of the following:

that there was material procedural irregularity in the consideration of the Complainant’s complaint;
that there was bias or prejudice on the part of the decision-maker;
that the decision reached was perverse in that it was one which no reasonable decision-maker could have reached on the available evidence;
that new material evidence is available, which was not available and/or not presented for good reason at the time of the original decision.

 

6.4.3. The request for a review should be accompanied by supporting documentation.

 

6.4.4. The review panel will consider the request for review and the documentation available to the original decision-maker. The review panel may, at its discretion, hold a hearing and regulate arrangements for the conduct of the hearing.

 

6.4.5. The review panel will issue an adjudication in writing as soon as possible, which shall normally be within twenty Working Days of the receipt of the request for a review or (if a hearing is held) within ten Working Days of the hearing. The review panel shall have power to confirm, quash, or amend the original decision or refer it back to the decision-maker for further consideration.

 

6.4.6.  If the review panel confirms the original decision, the Complainant will be issued with a Completion of Procedures letter when provided with the adjudication. If the review panel issues an amended decision then the Complainant will be offered a Completion of Procedures letter when provided with the adjudication. Where the Complainant remains dissatisfied with the outcome of the procedure, the Completion of Procedures letter will enable the student to submit a complaint to the external ombudsman, the Office of the Independent Adjudicator.

 

7.        Reporting

 

7.1.     An annual report of complaints considered under this procedure will be made to the College Governing Body in which references to individual cases will be made anonymously.

 

7.2.      The Senior Tutor will be responsible for the regular review of this procedure.