Be fair

Build a climate of trust and fairness

If students can have confidence that they will be dealt with fairly, disputes are less likely to begin or to escalate and they will be much easier to resolve.

Managers and heads of department usually want to be fair when they have to deal with a dispute,  but it is easy for those with decision-making powers to make mistakes unless they  know the rules of ‘fairness’? These are essentially simple and easy to grasp, though some of the implications need to be thought through carefully in the light of experience.

Fairness means not putting the weaker party whose interests are affected by any decision (usually the student or the employee) at a disadvantage.

There are two basic rules of fairness, which are traditionally known as the ‘rules of natural justice’. Although they are described as ‘natural’ they took their modern shape only gradually under the pressures of real needs in Roman and medieval law. They are not necessarily intuitively obvious to someone trying to decide what to do in an awkward situation which threatens trouble to come.

The first rule, sometimes called the nemo iudex rule, says that no-one may be the judge in his own case. This is the ‘bias’ rule. It means that the same person should not act as accuser, prosecutor, judge and jury.

So, for example

  • A Head of Department should not bring a disciplinary case against a student or member of department and then act as judge at the hearing
  • A person who has been confided in should not take any part afterwards in the institution’s decision about who was in the right
  • No one with any reason at all to prejudge the outcome should take part in the decision-making
  • If a student who feels that the institution’s management may be biased against students and asks for a student member to be appointed to a disciplinary panel or a panel considering a complaint that should normally be allowed

The second rule, known as the audi alteram partem rule, says that both sides of the case should be heard.

Under this rule come the requirements that no one should be tried:

  • in his or her absence, or
  • without support or representation if he or she asks
  • without being told the charge against him or her, or
  • without being given proper time to prepare his or her defence
  • without a chance to see and contest the evidence brought against him or her and in certain circumstances to question any witnesses.

Fairness also means ensuring that decisions are not taken ultra vires, that is when someone is acting beyond his or her powers.

  So decisions should be taken:

  • By whoever is authorized to take them
  • Using published procedures
  • In the light of all the relevant facts, with an opportunity for the alleged facts to be challenged and corrected by anyone affected
  • Against the stated criteria
  • Impartially

 It is important that the ‘decision makers’ should be able to consider the evidence they have been given and heard tested independently of any external interference

This is like the rule that juries must sit in a room by themselves to decide guilt or innocence, without the barristers and judge coming in to discuss things with them.