As half of the 1,700 people arrested after the August riots were under 21, colleges may find that some of their students or applicants were involved.  Can colleges take action regarding misconduct occurring outside their premises? Should they do so?

Can you take action?

Colleges can “police their own gates” and take action under their procedures for misconduct occurring outside their premises provided the misconduct is a breach of the relevant procedure. Such procedures may include discipline, admission, enrolment,  fitness to practise, safeguarding  and fitness to study. Whichever procedure is used it must have been incorporated into the terms of the contract between the student and the college by being brought to the student’s attention at or before enrolment.

Can you find out about convictions?

Most colleges’ application forms require an applicant to reveal unspent criminal convictions. But what if the student was charged or convicted after applying but before enrolment?  If the college has a procedure requiring students to disclose any  unspent criminal convictions occurring after applying any breach of this may justify the college taking action. But even if a conviction is revealed the college will need to consider whether it is appropriate for such action to be taken.

Why might you decide to take action?

The college may consider that it is reasonable to take action because there has been a breach of its code of conduct or damage to the college’s reputation. The college may also find it is under an obligation to undertake a risk assessment.  This should focus on whether:

• the student poses a level of risk to the health, safety and welfare of himself/herself or other staff and students, and

• whether that risk is capable of being managed (for example by the imposition of  conditions such as regular reporting to a senior member of staff).

In respect of some professional courses the college may have to report to the relevant regulator any issue over the student’s fitness to practise the occupation concerned.

Why might you decide not to take action?

If there are ongoing criminal proceedings the college may feel it should suspend taking any action until the outcome of the proceedings is known.  However, if the college considers that the student poses an unacceptable level of risk then it may be appropriate to consider suspending the student as a neutral interim measure.

Sometimes the police may ask the college not to take any action whilst their investigations are proceeding, for example to prevent tipping off.  The college should normally accede to such a request.

Can colleges take different approaches?

A “one size fits all” approach is not appropriate – different colleges may take different approaches depending on their mission and resources.  Devising procedures which are transparent, fair and robust and drawing these to applicants’ attention at the beginning of colleges’ dealings with them is vital to ensure that colleges may take action if they consider it necessary to do so.

Trish D’Souze is a Solicitor at Eversheds LLP