Universities must 'actively manage disruption' to avoid strike-related compensation claims

Out-Law News | 27 Nov 2019 | 11:34 am | 2 min. read

Universities will be under more pressure this year to actively manage and mitigate any disruption to their students as a result of industrial action following the publication of new guidance for the sector, an expert has warned.

This week, over 60 universities across the UK and almost 50,000 students are likely to be affected by the first wave of strikes called by members of the Universities and Colleges Union (UCU). The strikes are in relation to two disputes, one on increased contributions for the Universities Superannuation Scheme (USS) and one on 'pay and working conditions'. They follow 14 days of disruption in 2018 called by UCU over a previous proposal to change the benefits in the USS, which was subsequently withdrawn.

Universities dispute resolution expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law, said: "In 2018 there were numerous reports of student groups across the UK trying to petition their institutions with demands for monetary compensation and specialist claims firms promoting the threat of a £10 million cross-UK university sector class legal action if satisfactory assurances that any demands for loss and damage were not met".

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Julian Sladdin

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There is no clear right to receive compensation if an element of teaching is disrupted if the main purpose of the contract is still being delivered.

"While the threat of group legal action slowly faded away, those promoting the case for compensation will be pressing their cause even harder due to the fact that the dust has barely settled on the last round of student complaints," he said.

Sladdin also pointed to new guidance on industrial action published by the Office for Students (OfS), as well as a set of 'case outcomes' relating to the last set of strikes published by sector ombudsman the Office of the Independent Adjudicator for Higher Education (OIA) as evidence of a tougher approach, albeit not of a clear right to receive compensation if an element of teaching is disrupted but the main purpose of the contract between a student and their institution is still being delivered.

"The combined effect will be to place significant pressure on universities to ensure that they actively manage and mitigate any disruption to their students," he said.

Writing in 2018, Sladdin said that the strength of a university's position in the face of claims by students would depend on the terms of the contract, and whether its actions were "such that a court would accept as it taking all steps that would be regarded as fair and reasonable in all the circumstances". Universities could also put contractual terms in place intended to provide protection in the case of unforeseen events such as industrial action, although these would only be valid if fair and reasonable and would have to be incorporated into the contract at the point at which it is entered into.

"Despite the intervention of the OIA and OfS, the actual underlying legal issues which we highlighted previously have not changed," Sladden said.

"Furthermore, while the OIA has highlighted the need to ensure that students have the chance to make up any educational opportunities and outcomes, it has not presented any ruling which is in favour of the contract between a university and a student being simply for the delivery of a set number of lectures, tutorials or seminars instead of a participatory contract for the delivery of an educational experience. Therefore, there is no clear right to receive compensation if an element of teaching is disrupted if the main purpose of the contract is still being delivered," he said.

Sladdin said that the message from the guidance on contractual terms was that "although 'force majeure' clauses are not unlawful in themselves, they could be unenforceable in a consumer context due to the significant imbalance in the rights of the parties to the student contract".

"The guidance implies that the OfS and the OIA will not be slow to challenge universities where they place heavy reliance on such terms at the expense of taking reasonable endeavours to minimise disruption and mitigate any loss of educational opportunities and outcomes," he said.

"Effective communication with students around disruption, support and signposting students to meaningful complaints procedures – including that of the OIA – will also be key to any assessment of compliance by the OFS," he said.

Editor's note 29/11/19: This article has been updated to correct the reasons behind the strikes. We regret the error.