28 Nov 2019

Following the release of the revised Concordat to Support Research Integrity, all employers of researchers need to take action to safeguard the future of research ethics in the UK.

Universities UK has recently published a revised version of its Concordat to Support Research Integrity. Its stated aim is to ensure the highest standards of rigour towards research ethics and integrity, and to deal robustly with research misconduct when it arises. Signatories to the Concordat include, among others, UK Research & Innovation and the Wellcome Trust.

This blog focuses on what has changed in the revised Concordat, regarding the obligations of all employers of researchers, irrespective of the type and size of their organisation. As before, the Concordat contains five commitments on various aspects of research ethics; the changes in the revised Concordat mean employers of researchers now need to take a more proactive approach to research integrity, to remain compliant.

What should employers of researchers do immediately?

We explain some of the key changes in the revised Concordat below, but the key action steps for all employers of researchers are:

  1. Review, in preparation for the first annual report, your policies and procedures with regard to promoting research integrity and, crucially, dealing with issues of misconduct.
  2. Prepare the first annual report on research ethics for your governing body, website and to be sent to Universities UK and UK Research & Innovation. Make sure it includes details of the steps you have taken to improve research integrity, details of how you comply with the Concordat in dealing with misconduct and any investigations undertaken (even if none).
  3. Put processes in place to ensure that policies and procedures are continually reviewed and that you are fully prepared to report, each year, to the relevant bodies.
  4. Assign responsibility for research ethics and integrity to a senior individual within your organisation and put their details on your website.
  5. Develop and promote training programmes for all staff on research integrity and promote this within your organisation.

A changing world

As we enter a new decade of the 21st century, one thing is clear: we are on the cusp of profound changes to our society. The rise of China – with its markedly different attitudes to personal liberty, privacy and democracy – and the intelligent machine age will force us to interrogate, organise and support our existing ethical values and explore new ones for areas such as automation, gene editing and the surveillance capitalism of big tech companies.

It’s in this context that the updated Concordat has been published, following a 2018 report by the Science and Technology Select Committee of the House of Commons. The report made various recommendations, including that the language of the Concordat should be tightened and that it should be easier to assess compliance with it. It stressed the role that employers of researchers (in universities, research institutes or more widely in charitable bodies or commercial organisations) should play in overseeing how research is being conducted.

The timing of the updated Concordat is particularly apposite in light of the 2019 Foreign Affairs Select Committee report which suggests foreign autocracies, particularly China, could pose a risk to academic freedom in the UK (see our earlier blog on the evidence presented to that Committee, which was substantively upheld). It is apparent from this report that there is a clash of approaches to research ethics between China and the UK. The clear thinking on the UK’s industry standard approach, as set out in the Concordat, is therefore timely and welcome.

Collective responsibility for upholding research ethics

The first commitment is that researchers, employers and funders must maintain the highest standards of research integrity. The core definition of what research integrity means for the purposes of the Concordat has been amended to give additional emphasis to the notion of collective responsibility for upholding the standards, and for ensuring individuals are properly held to account when their behaviour falls short of those standards.

Dealing with research misconduct

This is picked up more specifically in the fourth commitment: “dealing with research misconduct using transparent, timely, robust and fair processes. The primary responsibility for investigating such incidents falls on the employers of researchers”. The revised Concordat includes a number of additional considerations concerning the procedures employers should have in place to conduct these investigations into research misconduct:

  • The use of independent, external investigators should be considered and clear routes for appeal should be made available. These are important tenets of natural justice, particularly if a researcher’s career or reputation is on the line, but they also reinforce the perception of fairness for parties concerned in the dispute, and external parties more generally.
  • Additional protection for whistle-blowers who have brought allegations in good faith and/or the public interest. This includes reasonable steps to safeguard their reputation, including avoiding the inappropriate use of confidentiality agreements.

This would include taking care both with the terms of any agreement the whistle-blower is asked to sign, and also the terms of any settlement agreement of the accused researcher. For example, if the employer cannot publicly defend the whistle-blower from rumours or untruths because of its confidentiality obligations to the researcher, then the whistle-blower may be perceived as a troublemaker.

  • Similarly, reasonable steps should be taken to safeguard the reputation of researchers who are exonerated. For example, this may include a public press release in a prominent place on the employer’s website if there has been negative (and potentially misleading) publicity about the researcher concerned.
  • Once the investigation has concluded, employers must take steps to resolve any issues which have been uncovered. This should include robust action, up to and including dismissal, against a researcher found to have crossed the line. It should also include steps to correct any failings in the organisation itself which has allowed (inadvertently or not) the misconduct to arise, e.g. increasing supervision or mentoring for researchers or reviewing recruitment procedures. This can also include correcting the research record and making appropriate disclosures to regulators and funders.
  • Processes and procedures concerning investigations (and research integrity more generally) should be subject to regular reviews to ensure compliance.

The Science and Technology Select Committee Report emphasised that research misconduct allegations should be investigated and dealt with properly and openly. In other words, employers should not resort to ending employment with settlement agreements (containing confidentiality clauses) simply to remove an individual and avoid a potentially troublesome process and/or unwelcome outcome.

The revised Concordat doesn’t go so far as to adopt that recommendation, but employers of researchers should be aware that this is the direction of travel. This is particularly true for commercial organisations, as they generally have more scope to make settlement agreements than charities, which may be prevented from using charitable funds to ‘pay off’ individuals who have committed research misconduct, as their ability to use these agreements may be further curtailed in the future.

Training and accountability

The third commitment concerns creating “a research environment that is underpinned by a culture of integrity and based on good governance, best practice and support for the development of researchers”. Promoting training on research ethics for all staff is an important component of this, and employers are strongly advised to review the training opportunities they currently provide .

The Concordat also requires employers to ensure a senior member of staff has responsibility for research ethics and integrity, and that their contact details are publicly available and up to date on the institution’s website.

Annual statement on research integrity

The fifth commitment now includes enhanced obligations for regularly and openly reviewing the strength of research integrity within institutions. In particular, employers are now required to produce an annual statement on research integrity which must be presented to their own governing body, put on their public website and sent to the signatories of the Concordat (which of course includes UK Research & Innovation).

The statement must include:

  • a summary of actions and activities that have been undertaken to support and strengthen understanding and the application of research integrity issues (for example postgraduate and researcher training, or process reviews);
  • a statement to provide assurance that the processes the institution has in place for dealing with allegations of misconduct are transparent, timely, robust and fair, and that they continue to be appropriate to the needs of the organisation;
  • a high-level statement on any formal investigations of research misconduct that have been undertaken, which will include data on the number of investigations. If no formal investigation has been undertaken, this should also be noted;
  • a statement on what the institution has learned from any formal investigations of research misconduct that have been undertaken, including what lessons have been learned to prevent the same type of incident re-occurring; and
  • a statement on how the institution creates and embeds a research environment in which all staff, researchers and students feel comfortable to report instances of misconduct”.

The virtues of compliance

These obligations clearly place a more onerous burden on the employers of researchers and, at the very least, institutions should be reviewing their existing policies and procedures in light of the revised Concordat, and taking steps to produce the annual statement that is now required.

However, there is a significant advantage to compliance with the Concordat from an employment law perspective. If an institution does get into a difficult research misconduct issue with an employee, then reliance on its adherence to the Concordat could assist its defence, if any disciplinary action and/or dismissal is later challenged.

For instance, if an investigation followed the high standards of the Concordat and the researcher was found to have fallen short of the required standards of research ethics, compliance with the Concordat could help demonstrate that any dismissal was reasonable and non-discriminatory.

Could the Concordat be improved?

Nevertheless, we do have one important criticism of the revised Concordat. As obligations of the type described above become more robust and demanding for employers of researchers, there may be an understandable tendency to be overcautious in their response to compliance and dealing with misconduct. This tendency needs to be resisted in one key regard: academic freedom must be protected. A weakness of the revised Concordat is that it does not emphasise this enough.

While it does make some reference to its importance and the wider legal framework, our experience of assisting with investigations in this area suggests that the issue of academic freedom is so intrinsic to their proper conduct, that it must be given greater prominence in the Concordat. To do otherwise could lead employers of researchers down a dangerous path and expose them to legal liabilities under employment and human rights legislation. In turn, this can lead to serious financial and reputational consequences.

If there is indeed a significant risk to academic freedom in UK universities (as highlighted by the Foreign Affairs Select Committee) and the high quality research which they conduct, then to give insufficient emphasis to the importance of academic freedom seems a remarkable omission – particularly if Chinese investment becomes more important for British universities in a post-Brexit environment.

Further, the report produced by the Committee could foreshadow action taken by a future Parliament to strengthen protection around academic freedom – indeed, the Conservative manifesto for the upcoming election makes just such a promise. If universities do not promote and protect academic freedom at the heart of their research integrity policies – particularly those covering HR investigations around misconduct – then they could fall behind the curve, and as it develops the unwary may quickly find themselves on the wrong side of the law.

Find out more about the team: Advising the innovation economy on research ethics, integrity and commercial exploitation.

James Murray is an Associate in the multi-disciplinary higher education team at international law firm, Taylor Vinters LLP. The team advises a range of higher education providers, research institutes and learned societies. It specialises on issues including: academic freedom of speech issues; academic staff engagement and intellectual property; governance and regulation; and research ethics and integrity. James has published numerous blogs on law and policy concerning academic freedom.