OxCHEPS HE Law Update Notes

This Page provides periodically issued Update Notes for the current edition of Farrington & Palfreyman on ‘The Law of Higher Education’. The Notes are loaded in the order we compile them and are X-referenced to the paragraph numbering in the current text.

11) Para 12.115 (ix) re US COVID LITIGATION - (As at May 2021) Some 300 class-action suits have been filed across the USA demanding partial refunds of tuition fees because allegedly the remote teaching delivery was substandard and/or was not the F2F delivery that was promised, as well as Ss supposedly missing out on the wider student experience of campus life. Many such cases have been dismissed but a few are proceeding to full trial and a handful have been settled. The US courts will not entertain ‘educational malpractice’ claims but will consider supposed breach of contract claims, and the latter will turn on precisely what can be demonstrated as having been explicitly promised (and especially whether the recruitment material made a fuss about cosy/ intense F2F teaching as a special feature of attending U/C X or Y, as well as whether the U/C operates a distance-learning degree course similar to a campus-based course but at a rather lower tuition fee). Even if the bar of showing there has been a broken contractual obligation can be got over the S will still have to demonstrate that he/she has suffered some kind of loss that should be compensated for under the usual principles of contractual damages - Has S as a result of the breach been less educated and how to measure that? Has S then, say, failed to get a job because of employer doubts over his/her ‘graduate ness’? In, for instance, the case of Rensselaer Polytechnic Institute the Court decided (16/12/20) that RPI has a case to answer in that it indeed made ‘some bold claims - or, plausibly, promises - about its in-person programming [especially in relation to a very specific part of the degree course by way of an ‘award-winning First-Year Experience’]’ and ‘what a student expects to receive in exchange for tuition money covers much more territory than simply the right to take classes’; while with Quinnipiac U, for example, there was a big price difference between its on-line offerings (at c$550 per module/program) and its on-campus courses (at c$1750) so, again, the case was not simply dismissed (25/3/21). Southern New Hampshire U settled at $1.25m and Barry U at $2.4m - the latter settlement (17/3/21) relating to some 6000 Ss being based on each side balancing ‘the complexity and uncertainty of certain issues in the litigation, particularly whether Defendant breached an express or implied contract for exclusively in-person education and the appropriate calculation of damages...’ (the settlement figure seemingly being about 60% of the ‘total likely recoverable damages‘ relating to the disrupted Spring Semester 2020). In other cases the Court has not found binding promises based allegedly ‘on isolated provisions in a student manual’ - applying ‘a “quasi-contract” theory’ which tests simply whether the U/C has acted in good faith in shifting from F2F to remote delivery in response to Covid disruption (for example in the Court’s dismissal of claims against Seton Hall U, 27/5/21). NB The RPI and QU judgements provide a comprehensive review of US HEI-S cases, including a number of other 2020/2021 claims for refunds reacted to Covid disruption of on-campus teaching and of ‘the student experience’...

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TLHE UPDATE NOTES (August, 2021)

12) Para 14.53, F/n 236 - Linked to the ‘vague and incoherent’ as well as ‘abusive’ claim dismissed by the High Court in ‘Cleeves’ (2017) this is a later 2021 action brought in British Columbia, reaching its Supreme Court before it being decided that the Canadian courts do not have jurisdiction over a contract law dispute between UK HEIs (the University of Oxford and St Anthony’s College) and this S based in Canada given that the two institutions have no presence in BC.

13) FURTHER READING - Castagnera, JO (2014) ‘Handbook for Student Law for Higher Education Administrators’ (Peter Lang, New York): note that ‘in 1961 only about 65 schools [HEIs] had in-house legal counsel… [while now the] membership of NACUA totals more than 3200’; there is some very accessible and pithy advice for academic administrators…

14) Para 16.13, F/n 12 - The case of ‘Okpabi & Ors v Royal Dutch Shell Plc & Anor’ [2021] UKSC 3 explores the relationship between parent companies and their subsidiaries, and where the former may inadvertently end up liable for the actions of the latter: also ‘Lungowe v Vedanta Resources Ltd plc’ [2019] UKSC 20. The test will be based on a very detailed examination of the degree of control in practice exercised by the parent as the de facto routine involvement.

15) Para 23.05, F/n 5 - The claims in ‘Isaac Sarayiah v University of Durham & Others’ [2018] EWHC 342 (QB) and [2020] EWHC 2792 (QB) were dismissed.

16) Para 9.02, F/n 3 - See also the same case at [2018] UKUT 343 (TCC) and a similar unsuccessful claim in ‘University of Southampton Students’ Union v HMRC’ [2020] UKFTT 419 (TC).

17) Para 18.02, F/n 22 - See also ‘Cornerstone v University of the Arts London’ [2020] UKUT 248 (LC).

18) Para 12.117, F/n 319 - Costs were awarded against the OfS, but note that, where a regulator ‘has brought or defended proceedings… acting purely in its regulatory capacity… [and even if] the regulator has been unsuccessful… the starting point or default position is that no order for costs shall be made against a regulator… [unless there is] good reason’ (for example, the weak financial position of the claimant or if the regulator has been unreasonable): ‘CMA v Flynn, Pfizer et al’ [2020] EWCA Civ 617.

19) Para 12.72, F/n 233 - The Scheme Rules 2016 for International Student Contract Disputes Resolution in New Zealand interestingly do not seem to include academic judgement as a reason for the operator of the Scheme declining to accept a dispute, but do encourage the use of mediation and also allow for remedies that include a payment of up to NZ$200k (sic) to a student claimant.

20) Para 20.01, F/n 1 - BTW: The Warden (and by extension presumably resident Tutors) in University Halls is an employee under a separate contract from any he/she may have as an academic (‘Sobnack v Loughborough University’, ET 2601886/2021).

21) Para 12.115(iv) re OIA CASE SUMMARIES - More have been issued (July 2021) concerning complaints arising from Covid disruption to teaching delivery and campus life. Awards are made to Ss where the practical element of a degree course could not be delivered - while general changes from F2F to remote teaching delivery combined with denial of access to campus facilities such as the Library are deemed to be reasonable adjustments by the U to the Covid crisis and no fees refund or compensation is due. The interesting question, of course, is whether such an award to student X on degree course Y should automatically be extended by the U to all other Ss within the same cohort if adversely affected in the same way?

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TLHE UPDATE NOTES (October 2021)

22) Para 18.02, F/n 22 - In ‘Cherwell Development Watch Alliance v Cherwell District Council, Secretary of State for Housing, and Christ Church College Oxford’ [2021] EWHC 2190 (Admin) - also involving Exeter College and Merton College as well as the University of Oxford itself - the CDWA lost a challenge to the CDC Local Plan Partial Review and its allocation of new housing on the edge of Oxford City.

23) Paras 9.24, 13.02, 19.13 - Add sub-paras g) & h) to Note 3 above:

g) Submissions to the Bill’s consultation phase noted, inter alia, the protection of academic freedom via Art 10 ECHR (where the academic is expressing views and opinions that are within his/her areas of research and professional expertise/competence); as well as arguing that the potential legislation would be stronger in protecting academic freedom if the jurisdiction over the proposed enforcement mechanism by way of the new statutory tort were given to the Employment Tribunal as being cheaper to access than the High Court, as not likely to award the U’s legal costs against the claimant academic, and as able to issue a re-employment order (and indeed dismissal in breach of the new duty could be stated as amounting to an automatically unfair dismissal). It has also been commented that the Bill needs amending to ensure Oxbridge colleges are covered as the employers of academics, albeit not (yet!) within the remit of the OfS.
h) See paras 240-246 & 266/267 of ‘R (Miller) v The College of Policing and the Chief Constable of Humberside’ [2020] EWHC 225 (Admin) for interesting comments on ‘the contours of the debate’ about ‘trans women’, referring to the evidence from Professor Stock of Sussex U about the ‘hostile climate’ now ‘facing gender-critical academics working in UK universities’; and note also the reference to Art 10 ECHR at para 252.

24) Para 19.03, F/n 3 - A U of South Wales PG S has been jailed for 20 months for hacking into the U’s IT system and stealing exam answers which were then sold to other Ss for £20k (Sept 21).

25) Para 11.52, F/n 389 - The deduction rate in the next sentence of para 11.52 for professional employees who provide all-year ongoing ‘undirected work’ (rather than being paid for a very specific set number of hours pw of ‘directed duties’ or ‘directed work’ - so profs rather than porters) is endorsed in ‘Hartley v King Edward VI College’ [2017] UKSC 39.

26) Para 12.17, F/n 97 - See also ‘Gough (otao) v University of Leeds’ [2021] EWHC 2653 (Admin) where JR was again refused concerning U’s decision not to admit G to an UG degree course, having allegedly failed to take into account her ‘personal disabilities and situation in life’. Ms G had also had a compliant to the OIA rejected because it involved an admission decision. In refusing JR it was noted that there were other more appropriate remedies in contract and under EqA10, and that it was entirely inappropriate to invoke HRA/ECHR legislation and notably any supposed breach of Art 6.

27) Para 7.39 - The OfS has issued new guidance concerning ‘Reportable events’ (akin to the CC’s SIRs guidelines): OfS 2021.44 (20/10/21) ‘Regulatory advice 16: Reportable events’ (applicable from 1/1/22 and replacing OfS 2019.40). The definition of an RE is given at para 11 and illustrative examples at Annex A.

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TLHE UPDATE NOTES (December 2021)

1.34, n. 207 Add Kenny v University of Dublin Trinity College (Approved) [2021] IESC 57, re award of costs 3.20 See now the University of St Andrews (Degrees in Medicine and Dentistry) Act 2021 asp 13.

10.17 In Agarwal v Cardiff University [2021] UKET 1600538/2016, where both parties had over the course of lengthy litigation been represented by QCs, A had been dismissed from her employment as a Clinical Senior Lecturer by U in 2016. She brought a number of unsuccessful claims against U. By the final hearing in 2017 the remaining claims before the ET were unfair dismissal, automatic unfair dismissal, race discrimination contrary to ss.13, 26 and 27 EqA and a claim in respect of the underpayment of notice pay. In 2018 U made a costs application against A amounting to some €222k. That hearing was delayed both by the appeal process and the hearing of a complaint to the Bar Council. A had made a costs application against U but that application was withdrawn in 2021. U’s application for costs was unsuccessful. In Agarwal v Cardiff University (Redundancy) [2020] UKEAT 0115_19_190, the EAT upheld an ET decision that A had been dismissed for redundancy.

10. 22 Add (v) Mr B Sobnack v Loughborough University (England and Wales: Unfair Dismissal) [2021] UKET 2601886/2020, a judgment of 41 pages with 201 paragraphs, both parties represented by counsel. This was a successful claim of unfair dismissal for alleged ‘unprofessional behaviour’ of a warden, also employed as a lecturer. S claimed that his position as warden was pursuant to a contract of employment that was separate and distinct from that of his role as a university teacher and that he was unfairly dismissed from it. He sought compensation and reinstatement or reengagement in the role of warden. U did not dispute that it is possible for S to have two contracts of employment with it, but that the role of warden was not that of an employer/employee relationship, and even if they were wrong about that he was fairly dismissed for some other substantial reason. After an extensive review of caselaw (not referring to any of the other cases listed in this para 10.22), the ET concluded that S’s contract of wardenship was indeed employment and that he had been unfairly dismissed, albeit applying the Polkey principle his compensation was reduced by 25% for ‘blameworthy conduct.’

10.32 HEIs which recognise a trade union for collective bargaining purposes should take note of the Supreme Court decision in Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47 which will have to be considered where union negotiations over contractual variations reach a stalemate. It related to the meaning of s.145B TULRCA, which prohibits an employer from making an offer to workers who are members of a trade union if acceptance of the offer would have a ‘prohibited result’ and the employer’s sole or main purpose in making the offer is to achieve that result. The ‘prohibited result’ is that the workers’ terms of employment, or any of those terms, ‘will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union.’ The Supreme Court decided that an employer will be in breach of s. 145B where it makes an offer which, if accepted, would constitute contracting out of collective bargaining on that occasion (thus bringing the offer within the ‘prohibited result’ category) and where the employer’s main purpose is to achieve the contracting out of collective bargaining, rather than having a genuine business purpose.

11. 29 add (xiii) The unsuccessful claims in X v University of Huddersfield (England and Wales: Disability Discrimination) [2021] UKET 1804908/2020 were of constructive dismissal and disability discrimination, a 65-page judgment of 250 paragraphs. The case involved the following disabilities for the purposes of DDA: Autism with ADHD traits, Borderline Personality Disorder, Complex Post Traumatic Stress Disorder and Depression and Anxiety. X was unrepresented.

11.29 add (xiv) The unsuccessful claims in Dr M Jackson v Cardiff University and others [2021] UKET 1600984/2017 were of sex and disability discrimination, plus unfair dismissal, failure to provide particulars of employment and unauthorised deduction from wages. There were 15 days of hearings, and a 113-page judgment of 758 paragraphs. J was unrepresented. The case involved autism and Asperger’s syndrome. The case is worth reading in full to assist HEIs in dealing with such disabilities.

11.35, n.260 See now the EAT findings in two cases: Professor John Pitcher v (1) The Chancellor Masters and Scholars of the University of Oxford (2) The President and Scholars of the College of Saint John the Baptist in the University of Oxford; and The Chancellor, Masters and Scholars of the University of Oxford v Professor Paul Ewart (Age Discrimination - Unfair Dismissal) [2021] UKEAT 2019-000638. In the P case, the ET had held he was fairly dismissed; in the E case, the ET reached the opposite conclusion. The EAT dismissed the appeals in both cases, holding that U and C had the following legitimate aims: (1) inter-generational fairness; (2) succession planning; and (3) equality and diversity. The EJRA was said to facilitate other measures in achieving those aims by ensuring vacancy creation was not delayed and recruitment into senior academic roles might take place from a younger, more diverse cohort.

In P’s case, the ET acknowledged the limited evidence demonstrating impact but considered this was because the EJRA was relatively new (Air Products plc v Cockram [2018] IRLR 755); giving weight to survey evidence regarding those who would have continued in employment absent the EJRA, and to the mitigating effects of the extension provisions, the discriminatory impact (also mitigated by post-retirement opportunities for senior academics) was justified. The ET further found P was dismissed for a fair reason (the application of an EJRA that was not unlawfully discriminatory), and both U and C had acted within the band of reasonable responses. These were conclusions open to the ET on the evidence; no error of law was revealed.

In E’s case, a statistical analysis showed the rate of vacancies created by the EJRA was trivial (2-4%); although disputed by U, the ET found it had not produced sufficient evidence to show the EJRA could contribute to the realisation of the legitimate aims; further finding the discriminatory impact was severe, and not significantly mitigated by the extension provisions, the EJRA was not shown to be proportionate. As for the additional requirement for a second extension (unforeseeable circumstances delaying project completion), as the desired vacancy had been created, the ET found this was not linked to a legitimate aim. The ET again reached conclusions open to it on the evidence; it did not err in its approach and there was no error of law. Although reaching different conclusions on proportionality, neither ET erred in law. The nature of the proportionality assessment meant it was possible for different ETs to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims; the task of the EAT was not to strive to find a single answer, but to consider whether a particular decision was wrong in law.

Although justification related to the policy and not its individual application, the presentation of the claims and the evidence before the ETs differed in material respects. Neither ET erred in the decisions reached.

13.18 See now the Defamation and Malicious Publication (Scotland) Act 2021 asp 10.

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TLHE UPDATE NOTES (February 2022)

1.04 The Advanced Research and Invention Agency Bill is expected to be passed in early 2022. It does not make any changes to higher education legislation.

3.03 In relation to the definition of education, see Dubrovin & Troger - Aquatics (VAT - Exemptions for certain activities in the public interest - School or university education - Judgment) [2021] EUECJ C-373/19 (21 October 2021).

10.16 DPP Law v Greenberg [2021] EWCA Civ 672 emphasises how cautious the EAT (or any appellate body) will be when approaching a challenge to the detailed reasoning of a specialist ET.

10.23, n.116 In Altes v University of Essex (Contract of Employment) [2021] UKEAT 2020_001057, the ET did not err in law in holding that the terms of A’s contract of employment (including incorporated provisions of U’s Ordinances) allowed U to terminate her contract before the end of her probationary period because of unsatisfactory performance, without following the procedure for dismissal for good cause pursuant to Ordinance 41. The EAT referred to the Deman judgment in the NICA.

10.71 In Hou v University of Manchester (England and Wales: Age Discrimination) [2021] UKET 2417084/2019, H was awarded ca. £1.5k for U’s failure to give written reasons for dismissal. Other claims were dismissed.

10.71 Dismissal can be for a number of reasons, as in Kostakopoulou v University of Warwick & Ors [2020] UKET 1306894/2020. This was an unsuccessful ET claim for interim relief relating to alleged automatically unfair dismissal under s. 103A EmpRA96 for protected disclosures. Subsequently K brought an unsuccessful defamation claim against various members of U’s staff: Kostakopoulou v University of Warwick & Ors [2021] EWHC 3454 (QB). Pending this, the ET claim was suspended.

10.84, n.415 Failure to follow the ACAS Code led to compensation for unfair dismissal being increased by 25% in Plaut v Exeter University (England and Wales : Race Discrimination) [2021] UKET 1400362/2020 and 1403179/2020. The award was then reduced by 25% by reason of contributory conduct. The final award was in excess of £100k.

10.100, n.499. Add: In (1) Oxford Saïd Business School (2) Dr Andrew White v Dr Elaine Heslop [2021] Case No: EA-2021-000268-VP (previously UKEATPA/0110/21/VP), the EAT upheld a finding by an ET, which applied the correct test of causation in a claim for detriments suffered during employment on the grounds of protected disclosures. DPP Law v Greenberg [2021] EWCA 672 (see para 10.16) was applied. The award of the ET was approximately £1.5m for unfair dismissal, detriments and failure to comply with the ACAS Code of Practice. In Radeljic v University of East London (England and Wales: Breach of Contract) [2021] UKET 3201164/2020, a 62-page judgment of 274 paragraphs, the ET found that R suffered detriments on the ground that he had made protected disclosures, contrary to s. 47B EmpRA96. R’s resignation amounted to a constructive dismissal, which was automatically unfair contrary to s. 103A EmpRA96. The reason for the dismissal was that R had previously made protected disclosures. R’s dismissal was also a wrongful dismissal in that he was not paid the three months’ notice pay to which he was entitled. A remedies hearing would take place in 2022.

10.103 In Duxbury v University of Huddersfield [2022] UKET 1802863/2020, U did not satisfy the ET that it was impractical to reinstate D following a finding of unfair dismissal, relating to a new requirement to obtain a PhD for which no time allowance was made, and consequential impact on D’s mental health. This resulted in an additional award. The total compensation payable was approximately £108k.

11.06 The unsuccessful claim of sex discrimination (or religion/belief) in Masoumeh Velayati v Al-Maktoum College of Higher Education [2021] UKET 4102154/2020 was also an unsuccessful claim of unfair dismissal. This 344-paragraph detailed judgment following 8 days of hearings concluded that there was a genuine and fair redundancy.

11.13, n.78 See also Piepenbrock v The London School of Economics and Political Science (Practice and Procedure, Sex Discrimination) [2021] UKEAT 2020-00732 (and see 21.22 – claim for psychiatric injury.)

11.24, add case xxiii Dr A Plaut v Exeter University (England and Wales : Race Discrimination) [2021] UKET 1400362/2020 and 1403179/2020. A claim of victimisation and harassment succeeded in respect of suspension. See also 10.84, n.415.

11.32 Note Masoumeh Velayati v Al-Maktoum College of Higher Education [2021] UKET 4102154/2020, in 11.06.

13.16, n.96 See further, in 24.33

24.30 Scott v The Vice-Chancellor of the University of Canterbury [2021] NZERA 311 is a recent example of a successful claim of unjustifiable disadvantage and dismissal resulting in an award of ca. NZ$186k, after investigation by the employment relations authority Christchurch/I te ratonga ahumana taimahi Ōtautahi rohe. It is an interesting discussion of how an HEI should fairly treat issues of staff mental health, so worth study by HR departments.

24.33, n.234. Ultimately R was unsuccessful. See further Ridd v James Cook University (No.2) [2019] FCCA 2489, James Cook University v Ridd [2020] 278 FCR 566 and finally Ridd v James Cook University [2021] HCA 32. The High Court of Australia held that R was dismissed not only for breaching the Code of Conduct by making disrespectful comments regarding the work of his colleagues, but also for violating confidentiality obligations which the Court held did not limit his intellectual freedom. As the High Court referred to a number of cases and texts cited in this Chapter and Chapter13, it is worthy of study by UK HEIs. See for explanation The High Court’s defence of Academic Freedom in Ridd v JCU – AUSPUBLAW.

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TLHE UPDATE NOTES (March 2022)

28) Para 18.02, F/n 4 - In ‘Cambridge University Boathouse Ltd v HMRC’ [2021] UKFTT 38 (TC) the issue was whether VAT was due on the new-build as a supply to the various boat-clubs occupying it or to the many individual rowers?

29) Para 18.09, F/n 56 - On the extent of the duty of care owed to a trespasser see ‘Ovu v London Underground Ltd’ [2021] EWHC 2733 (QB).

30) Para 8.24, F/n 41 - No vicarious liability for the Club in relation to an informal/loose link with an individual seeming to be the Club’s scout/recruiter when he abused a boy (DSN) on a trip braid that the Club had not endorsed or organised: ‘Blackpool Football Club Ltd v DSN’ [2021] EWCA Civ 1352 (reversing [2020] EWHC 595, QB).

31) Paras 12.19 & 12.115(xii)(i) - Seemingly at the behest of the DfE the OfS has expressed concern (24/11/21) that HEIs may have clauses in their U-Applicant/Student contract for admission which claim to allow the U to withdraw offers if a course is oversubscribed. The OfS view is that any such clauses ‘would likely contravene consumer law’, the breach of which could lead to enforcement action by the OfS. The OfS referred to the CMA’s statement (November 2021) re-iterating its 2015 ‘advice on consumer protection law’ as issued to HEIs (12/3/15, CMA33) - and see also CMA July 2016, ‘Consumer law compliance review’ re the HE UG sector of commercial activity. The CMA has stressed that the terms of the U’s offer ‘must be fair’ and not cause ‘consumer detriment’ - and hence that such a term allowing the U ‘to cancel or withdraw an accepted offer’ is ‘likely to be unfair’ (referencing CMA33 paras 5.22-5.24). Similarly any terms that ‘seek to limit liability’ where an HEI fails to provide a place also ‘are likely to be unfair’ (citing CMA33 paras 5.30/31).

32) Para 21.22, F/n 78 - The HSE has issued an ‘improvement notice’ to UEL re ‘multiple cases of work-related stress’ among academics (at October 2021); UEL is appealing on the basis that the HSE action is a ‘disproportionate response by the HSE to the evidence’. A similar notice was issued to Liverpool Hope U in 2009.

33) ADD to Note 23(h) - also [2021] EWCA Civ 1926 ‘Harry Miller (otao) v College of Policing’.

34) Para 12.67, F/n 212 - In ‘Roe v University of Waikato’ [2021] NZHC 1808 R was unsuccessful in seeking to force U to award an MPhil on the basis of the thesis submitted, which the U judged to have been submitted prematurely and also as inadequate when examined.

35) Para 12.81, F/n 259 - In ‘UEL v Pearl Chuko’ [2021] EWHC 3328 (QB) C alleged procedural defects in her 2015 dismissal from a social work degree (commenced in 2013/14) because of issues in a placement and sought £150k as damages (Ms C had since enrolled and qualified at ARU). UEL’s handling of the litigation is criticised and it’s attempt to bring it to an end was unsuccessful, Ms C being awarded costs.

36) Para 4.82 - The OfS has issued a ‘decision’ over its ‘Consultation on quality and standards conditions’ (OfS2022.12, 2/3/22): there will be amendments to the regulatory framework, notably new conditions B1, 2, 4, 5 from 1/5/22; such will enable the OfS ‘to regulate quality and standards more effectively in practice and and offer better protection for students’; the OfS does ‘not have an absolute obligation to protect [institutional] autonomy’ and in this case the proposed changes to the framework ‘balance’ the duty over protecting such autonomy with the duty ‘to regulate in the interests of students’; the new conditions also target ‘grade inflation’.

37) Para 16.11 - The complex interaction of the trading company and the U can be seen in ‘Dr E Heslop v Oxford Said Business School Ltd & Dr White’ ET 3334934 (2018) awarding H almost £1.5m after the company lost an appeal at UKEATPA/0110/21/VP (‘Oxford Said Business School & Dr Andrew White v Dr Elaine Heslop’, 11/11/21). The case is also of interest for the size of the award and for the fact that it was made ‘joint and several’ against OSBS Ltd and Dr W personally as one of its directors. The UofO itself avoided entanglement in an astonishing mess-up over proper HR processes given its use of this arms-length trading company.

38) Para 12.115(ii) & Further Reading H - a) The NAO March 2022 Report on ‘Regulating the financial sustainability of higher education providers in England’ looks at the roles of the DfE and of the OfS. b) In doing so it starts off with ‘Key facts’ relating to HE in 2021: 2.3m students in 254 HEPs whose income is £36.1b, of which 36% came from public sources; 33% of such students in 2021 regarding their course as good vfm and 54% saying it is not good vfm; of the 2.3m students, 1.8m are from within the UK and 1.6m are UGs; the ‘profitable activity’ of international students (340k students from 204 countries excl UK & EU, including 35% from China and 14% from India) generate almost £2b which helps to greatly offset the overall £2.8m deficit across all HEPs - but ‘We cannot conclude whether universities are right to make these assumptions about continued growth [in international student recruitment], in a competitive global market’…c) The Report ‘focuses on the OfS’s responsibilities to protect students’ interests from the consequences of financial risk in higher education providers’, noting inter alia that almost a third of HEPs faced an in-year deficit for 19/20, with 10 as at December 2021 being subject to OfS ‘enhanced monitoring’ given ‘heightened risk to their financial sustainability’; and also that the OfS ‘lacks a strong measure with which to judge the value for money students get from their courses’ - as well as the fact that during the Covid pandemic the OfS found that ‘it needed stronger powers of intervention to protect students’ education when a provider is at material risk of market exit’. The NAO commented that ‘some providers would have faced financial difficulty had they been required to refund tuition fees’ because of the shift from F2F on-campus teaching to the remote delivery of teaching (see discussion below in 12.115). The Report concludes that the DfE should ‘make clear what tolerance the government has for provider failure, and the circumstances under which it would or would not intervene’ while the OfS should ‘review, improve where necessary and then reauthorise student protection plans for all providers’.

39) Para 7.23, F/n 42 - See also Law Commission No.350, ‘Fiduciary Duties of Investment Intermediaries’ and ‘R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing, Communities and Local Government’ [2020] UKSC 16: ‘Trustees may take account of non-financial factors if they have a good reason to think that the [pension] scheme members share a particular view, and their decision does not risk significant financial detriment to the fund’. The key words, of course, being ‘good’ and ‘significant’!

40) Para 7.28 - On s61 TA25 re the Court excusing trustees from breach of trust see ‘Santander UK Plc v RA Legal Solicitors’ [2014] EWCA Civ 183: Step 1, decide whether the trustee had acted ‘honestly and reasonably’; Step 2, decide whether, if so, the trustee ‘ought fairly to be excused’; Step 3, again if so, decide whether the trustee is to be relieved ‘wholly or partly’ from the personal liability arising from the breach of trust. Acting ‘dishonestly’ in the sense of Step 1 meaning not honestly might include ‘a trustee who does nothing, swallows wholesale what is said by a co-trustee, never asks for explanation, and accepts flimsy explanations’ - stated in ‘Re Second East Dulwich etc Building Society’ (1899) 79 LT 726 at 727 (one wonders if such a situation could arise in, say, an Oxford college Governing Body of 50+ Fellows-qua-trustees where a powerful secretive sub-set or cabal might assume a degree of influence if not control that leaves others not feeling able to query let alone challenge the direction of activity on a particular matter that involves, say, lengthy litigation and hefty legal costs: the inactivity of the silent majority will likely be a beach of trust not deserving the Court’s relief from personal liability if the college/charity has lost out financially?).

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TLHE UPDATE NOTES (APRIL 2022)

1.04 As anticipated, the Advanced Research and Invention Agency Act 2022 does not make any changes to higher education legislation.

Part 4 Skills and Post-16 Education Act 2022 deals with ‘essay mills.’

The Charities Act 2022 and the Charities Act (Northern Ireland) 2022 prospectively make a number of changes to exiting charity law, including in the former, a new power in certain cases to amend a Royal Charter (s 4) and in s 24 some changes to the University and Colleges (Estates) Act 1925. It ‘replaces the numerous and complex powers which the UCEA 1925 confers on the institutions to which it applies with a consolidated general statutory power in respect of land transactions. It also removes the requirement to obtain Ministerial consent (from Defra) prior to entering into certain types of transaction, and removes restrictions and powers in relation to dealing with capital money.’

1.09 The Education (Student Fees, Awards and Support) (Amendment) Regulations 2022, SI 2022/57 include new eligibility criteria for persons granted leave under the Afghan Citizens Resettlement Scheme, and changes to overpayment regulations.

2.30 The Higher Education Short Course Loan Regulations 2022, SI 2022/349 provide for a trial period for fee loans for students taking designated higher education short courses from 1 September 2022 to 31 July 2023.

3.15 Part 4 Skills and Post-16 Education Act 2022 (applying only to England) deals with ‘essay mills.’ The legislation bans the commercial sale of assignment help and essays to students over compulsory school age, including the advertising of such services and creates criminal offences punishable by a fine on summary conviction.

10.14 Parry v University of Surrey [2022] UKET 3323581/2021 and 33021133/21 concerned P’s claim that he had been dismissed for making protected disclosures, amounting to complaints about U’s car parking regulations, where a private parking firm had access through DVLA to P’s details in order to enforce parking fines on U’s campus. P cited Sch 4 Protection of Freedoms Act 2014, and the GDPR. P had met U’s Vice-Chancellor to discuss this issue. He had also raised health and safety concerns about arrangements for a rota of staff working on U’s reception desk and further complained of failure by U to make reasonable adjustments to his working arrangements, impacting on his mental health. U dismissed P as the working relationship had broken down. P sought interim relief. The ET dismissed his claim for interim relief citing Taplin v Shippam [1978] ICR 1068 and Safraz v Ministry of Justice [2011] IRLR 562 (EAT), holding that P did not have a ‘pretty good chance’ of showing that the principal reason for his dismissal was protected disclosures.

10.20 Add (vi) Horn v International School of Screen Acting [2022] UKET 3220792/2020, concerned whether H, initially a voice and movement tutor, later assuming the role of Associate Director of the ISSA, which provided tertiary level training to aspiring screen actors, was an employee or worker, or self-employed. Some 1000 pages of documents were reviewed by the ET, which concluded that H was neither an employee nor a worker. The ET cited Windle v Secretary of State for Justice [2015] ICR 156, The Independent Workers Union of Great Britain v Central Arbitration Committee and another [2021] EWCA Civ 952 (the Deliveroo case) and Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51.

10.72 See also Dargle v Colchester Institute [2022] UKET 3205520/2021 and Gilani v De Montfort University [2022] UKET 2600520/2022, both out of time.

10.73 See also Perret v University of West London [2022] UKET 2204870/2021, concerning an alleged protected disclosure under s 47B EmpRA96, and Jehani v (1) Royal Free Hospital NHS Foundation Trust (2) University College London [2022] UKET 2207632/2020 where U failed to have claims against it struck out, for being out of time and on grounds of her status. J claimed in relation to UCL she was (i) an employee, worker or a contract worker, as such she had standing to sue UCL (as well as having been an employee of the Trust; (ii) that she had an honorary contract with UCL.

10.98 In Meloy v University of Leeds [2022] UKET 1803288/2021, U subjected M to the detriment of removal from his substantive post in the Faculty of Engineering and Physical Science into a completely different role away from his colleagues on the ground that he carried out activities to prevent or reduce risks to health and safety at work (related to returning to offices and laboratories following a COVID-19 lockdown) having been designated by the respondent to carry out such activities. The case is worth study for its analysis of the difficulties caused by the pandemic and different responses to the problem by academic staff.

11.13 From another Commonwealth jurisdiction, Fiji National University v Lal [2021] FJHC 339 illustrates where the handling of sexual harassment cases can go badly wrong. In this case L was transferred to a different campus and demoted following being found guilty of sexual harassment. The High Court, overturning a decision of a lower tribunal, found that L was not entitled to a transfer allowance, nor was the award to him of $10k compensation for humiliation, loss of dignity and injury to his feelings. The court observed that L was the brother of the Vice-Chancellor (who had however properly recused himself from the disciplinary proceedings against L).

11.41 In O’Hagan v University of the Creative Arts [2022] UKET 3318811/2019, the ET in a 156-paragraph judgment dismissed claims of unfair dismissal, detriment on grounds of protected disclosure, automatic unfair dismissal on grounds of protected disclosure and direct discrimination, discrimination arising in consequence of disability and breach of the duty to make reasonable adjustments. It concluded by holding that O had been fairly dismissed as redundant.

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TLHE UPDATE NOTES (JULY 2022)

4.72 The Tertiary Education and Research Bill (Wales) is at Post-Stage 4, likely to become law in autumn 2022, to create a new Commission on Tertiary Education and Research from 2023. The HEFCW will be dissolved, and registration of providers similar to the OfS (England) procedures will be carried out.

10.31 and 10.87 In Clement and Poole v Swansea University [2022] UKET 1600005/2020 & 1600072/2020, Professor C (former Dean of the School of Management) and Mr P (former Head of Innovation, Commercial and Business in the School of Management) were fairly dismissed from their employment at U for misconduct, essentially for failing to comply with U’s conflict of interest policy in relation to two external projects, known as the Llanelli Wellness Village project and the Kuwait project. The case heard by an EJ, with C and P appearing in person, U being represented by a QC, was essentially about the first of these projects, and other members of U’s staff involved in this project had also left its employment. The 229-paragraph decision involved 12,933 pages of evidence. The matter had received media attention when the claimants were dismissed in 2020, and is worthy of study by all HEIs who may become involved in major commercial developments of the kind described in the judgment.

10.96 In Leary-Olwin v London South Bank University (England and Wales: Breach of Contract) [2022] UKEAT 2300282/2020, L-O, a Senior Lecturer at U since 1992 brought unsuccessful claims of unfair dismissal, race discrimination, harassment, victimisation, detriment for making protected disclosures, and automatic unfair dismissal for making protected disclosures. The 70-page judgment has 306 paragraphs, with 16 days of hearings and a total of 3588 pages of evidence. The issue which formed the basis of L-O’s complaints revolved around the allocation of teaching and supervision hours, with reference to the ‘student contract’ and the breakdown in relationships between L-O and other staff, involving numerous difficult email exchanges, etc. The decision to dismiss was found to be both procedurally and substantively within the range of responses leading to a fair dismissal.

11.13, n.78 add Also see Piepenbrock v The London School of Economics and Political Science (England and Wales: Disability Discrimination) [2022] UKET 2200239/2015 (v) in which P lost his claims for unfair dismissal, discrimination because of something arising in consequence of disability and victimisation. This case involved 35 days of hearings and resulted in a 163-page judgment of 763 paragraphs.

11.24 add (xxiii) Al-Dubaee v University of Strathclyde (Scotland: Race Discrimination) [2022] UKET (S) 4100011/2021 was an unsuccessful claim of direct racial discrimination in respect of Arab ethnicity. This was a 150-paragraph decision in which ten allegations of discrimination were examined, relating to non-renewal of a fixed-term contract (FTC) and extension of probation. The ET found that the various actions taken by U had ‘nothing to do with race.’ The EJ found the involvement of the lay members of the ET as very helpful in understanding questions about structure charts, probationary review processes and investigations into complaints. A-D was successfully re-deployed to another position at the end of his FTC.

11.24 add (xxiv) Chakraborty v (1) Professor K Hion (2) University of Dundee (Scotland: Race Discrimination) [2022] UKET(S) 4113770/2021 was an unsuccessful attempt to add a claim of unfair dismissal to a continuing claim of race discrimination.

11.45 In Osinuga v BPP University Ltd Legal Team (Practice and procedure - Unfair Dismissal - Redundancy) (Rev1) [2022] UK EAT 53, O originally brought her unsuccessful ET claim for unfair dismissal, sex discrimination and unlawful deduction from wages. The EAT held that the ET erred by not considering the issues of whether the employer had carried out a reasonable consultation, adopted a fair basis on which to select for redundancy or taken reasonable steps to seek alternative employment for employees threatened with redundancy, in circumstances where the parties had not expressly or impliedly agreed that those issues did not arise in the case (applying the Langston case), and/or by not giving sufficient reasons in relation to those issues. However, the ET did not err in law when it decided that there was a redundancy as defined by s 139(1)(b) EmpRA96, and it gave sufficient reasons for that conclusion. The case was remitted to a differently-constituted ET.

15.17 In The Governing Body of All Souls College [2022] Ref IC-162170-W3M1, the IC held that C had failed to provide a substantive response to a request filed with the Charity Commission in July 2010 concerning the online availability of a founding document that established the status and governance of the College. The complainant had written to the College in February 2022 but had not received an FOI response. IC found that the College had breached s 10(1) FOIA and ordered it to provide the response within 35 days.

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TLHE UPDATE NOTES (AUG 2022)

1) Para 12.115 (v) - There are reports (March 22) that some RG Us (incl Edinburgh, Glasgow, Leeds) have amended their 21/22 U-S contracts to add ‘pandemics’ to the events that trigger the force majeure clause, so as presumably to head off student demands for partial refunds of tuition fees arising from Covid or similar diseases caused disruption to the functioning of the U; while also some Us are rejecting such requests on the basis that the U-S contract never expressly specified any set F2F teaching hours. With respect to any force majeure clause, of course, its validity will depend on whether a court (or the OIA) will view it as as a fair term under CRA15 and also whether the U can anyway demonstrate the making of reasonable efforts to avoid it needing to be relied upon - such might be especially the case with Redford to strikes and other industrial action in terms of whether arguably the U had had plenty of notice during which to make other arrangements for, say, the setting & marking of exam papers.

2) Para 12.04(4) - While the courts will not second-guess pure academic judgement on teaching & examining (in effect quality & standards), the OfS is increasingly involved in seeking to regulate Q&S: see, for instance, the DfE letter of ‘guidance’ to the OfS Board dated 31/3/22 which calls upon the OfS to tackle ‘unacceptable pockets of poor quality provision’ whereby students fail to ‘receive the educational experience that their provider has promised’ by way of ‘high-quality teaching, including face-to-face education’. The DfE expects ‘robust regulatory investigation and action’ with respect to Condition B3 of the Regulatory Framework and hopes for ‘on-site inspection of 10-15 providers next year’ (termed in the media as the OfS ‘putting boots on the ground’ - or even into the lecture/seminar room!).

3) Para 18.05 - Oxbridge Cs can end up in the CofE Consistory Court of a given Diocese as in that of Ely concerning The Rustat Memorial, Jesus College, Cambridge (23/3/22) ([2022] ECC Ely 2): ‘College not demonstrating a clear and convincing justification for removal’ of the Memorial to a former benefactor from its Chapel.

4) Para 12.01, F/n 1 - See ‘Perspectives’ (Open Access, 2022) for ‘Law cases for the student affairs administrator’ (Palfreyman).

5) Para 16.15 - Laurentian U, Ontario, filed for creditor protection in 2021 with liabilities of some C$320m and restructuring plans involving course closures, redundancies, and asset sales (its financial problems seem partly to stem from over-borrowing to build; governors have resigned…).

6) Para 12.44, F/n 163 - And see 24.07, F/n 27, re the US ‘Sylvester’ case: as in that case the Court here is more concerned with the U’s stark procedural failings than second-guessing expert academic judgement (albeit that it seems odd for such expert judgement to come up with a startlingly wide range of marks for the sane exam script!).

7) Para 7.15 - The Charities Act 2022 impacts on Us & Cs in various ways: s4 gives ‘Power to amend Royal Charter’ (but still to be approved by the PC); s9 defines ‘permanent endowment’ as property ‘subject to a restriction on being expended which distinguishes between income and capital’; s10 provides for some easing of restrictions on spending capital where the U/C administers a trust fund; s12 giving wider powers to borrow from permanent endowment; s13 re trustees electing to use total return investment; s15 giving ‘limited power for charity trustees to make ex gratia payments’ (up to £20k in any one instance - but unlimited instances pa! - for a charity with an annual income exceeding £1m); s21 re the disposition of land (the formal advice can be from an employee or even a trustee rather than as previously having to be a ‘qualified surveyor’); s24 making amendments to the Universities and College Estates Act 1925.

8) Para 12.107 - The ‘ASA Ruling on Teeside University’ (15/11/17) upheld a complaint that the U’s advertising was misleading in making the claim to be ‘The top uni in England for long-term graduate prospects’, the ASA telling TU ‘to ensure that it held robust data to substantiate comparative claims in future’.

9) Para 18.03, F/n 22 - The ‘Cornerstone/Beauchamp’ case (and conjoined related ones) reached the UKSC ( [2022] UKSC 18 ): a ruling broadly in favour of the operators and their ability to benefit from the extra rights granted under the new Electronic Communications Code, making it easier (in line with Government policy) to roll out digital infrastructure.

10) Para 19.15, F/n 34 - In ‘Onifade’ the parking charge as displayed in the U’s car-park signage is the ‘offer’ and ‘acceptance’ happens when the employer parks, thereby creating an enforceable ‘agreement’ or contract.

11) Para 1.41, F/n 225 - On how a charity can be ‘sold’ as in Regent’s College and the College of Law, see ‘Manhattan Eye,Ear and Throat Hospital v Spitzer’ 186 Misc 2d 126, 715 NYS 2d 575 (NYSC, 1999) and J Fishman, ‘From Charity to Commerce’, 1997/98 CL&PR 21, 21. Also (forthcoming) M Synge on the application of charity law to UK universities - [ details to be added… ].

12) Para 12.115 (vii) - If ever any litigation reaches the courts by way of student claims for tuition fee reductions/rebates because of Covid disruption to the delivery of teaching and campus services, conceivably the Government ‘Guidance on responsible contractual behaviour in the performance and enforcement of contests impacted by the Covid-19 emergency’ (Cabinet Office, 7/5/20 as updated 30/6/20) could be relevant given the Guidance encourages (it has no force of law) parties ‘to act responsibly and fairly in the national interest in performing and enforcing their contracts’ while also ‘being reasonable and proportionate in responding to performance issues and enforcing contracts… aiming to achieve practical, just and equitable contractual outcomes’ (so, the U concedes Ss have been short-changed by being denied F2F teaching? - or the Ss accept that the U did all it reasonably could to sustain teaching delivery albeit remotely?). The possibility of any such litigation, however, as at July 2022 seems very unlikely - and where class-actions in the USA have been launched they have run into the sand at first instance, with only a very few so far reaching the appeal stage….

13) Para 17.14 - While not a franchise operation, in ‘R (otao Wanjiru Karanja) v University of West of Scotland’ [2022] EWHC 1520 (Admin) the Court ruled that an S registered at U’s London campus under a contract stating that ‘the Scottish Courts will have exclusive justification’ over any dispute was not able to access English judicial review.

14) Para 21.28, F/n 111 & Para 18.26 - In ‘Dr Robert Abrahart (Administrator to the estate of Natasha Abrahart decd) v University of Bristol’ (County Court at Bristol, Claim G10YX983, 20/5/22) the Court (Judge Railton) found: a) that the U had no general duty of care towards an S in terms of potential negligence for failing to protect his/her ‘wellbeing’ and ‘welfare’ (no positive obligation in tort and no implied contractual term); but b) that it did fail to make reasonably adjustments under EqA10 having been put on notice in relation to NA’s disability and hence had directly discriminated against her (an award of £50k against the U). NB only a first instance decision… See also paras 18.26 & 21.29.

15) Para 21.29 - see also para 21.28 & 18.26: In ‘Sanchez v University of Bristol’ (County Court at Bristol, Claim 008LR988, 21/4/22) the Court (Judge Railton) noted the U-S contract but found no general duty of care under that contract nor in tort upon the U to protect the ‘wellbeing’ of S or to protect S from other Ss (‘The existence of such a duty of care owed by a university to a student is a novel proposition; no authority has been cited to me on this point.’ - para 152). Thus, given the key principle in tort law of there being no liability for omission, the U owed no such General positive action duty of care. NB only a first instance decision.

16) Para 7.16 - The case of ‘Freeston’s Charity v University College Oxford’ [1978] 1 WLR 741 (CA) concerned the C’s powers to administer trust property under the Universities and Colleges (Trusts) Act 1943 in terms of creating a scheme for dividing income between itself and a school as also a beneficiary.

17) Para 12.115 (ix) - In ‘Durbeck v Suffolk University’ 547 F. Supp. 3d 133 (D. Mass. 2021) the Court reviewed a number of the many US class-action Covid tuition fees refund cases that have been dismissed, but here the Court on appeal referred the claim back to the lower court and refused to approve U’s attempt to have D’s claim dismissed. See also ‘Schaffer v George Washington University’ (Dist of Columbia Appeals Ct, 8/3/22) where similarly the claim was referred back on the basis that there might be an implied term that the U proposed F2F teaching - although the Court noted that U might well be able to assert that force majeure had obliged it to shift to remove teaching.

18) Para 12.52, F/n 180 - The CUC has issued (May 2022) ‘Tackling Harassment and Sexual Misconduct: Guidance for Chairs and Governing Bodies’ which usefully X-refers to similar guidance from the OfS, OIA, and UUK.

19) Para 19.10, F/n 24 - With reference to injunction against ‘persons unknown’ see ‘Barking & Dagenham LBC v Persons Unkown’ [2022] EWCA Civ 13: reaffirming the validity of such injunctions.

20) Para 16.02 - In ‘McGaughrey & Davies v USS Ltd’ (and its various Directors personally) [2022] EWHC 1233 (Ch) an attempt to sue the Directors for breach of duty in managing the pension fund failed.

21) Para 12.115 (xii) (g) - The OIA has awarded over £600k to some 450 students at the Royal College of Art who demonstrated that the C’s remote teaching during the Covid lockdown was inadequate (denial of access to practical facilities etc).

22) Para 7.23, F/n 42 - Charities can now more readily and extensively take into account ESG/SRI aspects (notably re fossil fuel divestment): ‘Sarah Butler-Sloss v Charity Commission & Attorney-General’ [2022] EWHC 974 (Ch); but note the charities involved did have environment protection/improvement within their objectives and also that a careful ‘balancing exercise’ still needs to be undertaken by the trustees (as detailed at para 78).

23) Para 12.115 (v) - The 2021 OIA Annual Report recorded 2763 ‘complaints received’ (up 6% on the previous year), with about a third of them relation to Covid disruption and UGs accounting for just over half. Of the ‘complaints closed’ 3% were found ‘Justified’ and 9% ‘Partly Justified’. The Covid related complaints led to over £200k in settlements and c£40k as awards - but see para 12.115 (xii) (g) for a more recent £600k award relating to Covid disruption to the delivery of teaching!

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TLHE UPDATE NOTES (OCT 2022)

1. Para 17.03, F/n 4 - Using ‘subject to contract’ might not be quite as effective as one might hope: the Court might find that a binding contract has in fact come into existence if, say, payments or other commitments have begun ( S.E. Johnson v H.D. Spooner and another [2022] EWHC 735 (Ch) ).

2. Para 12.94 - Query: The HE applicant facing the information asymmetry problem caused by the reluctance of the HE industry to be precise about course delivery could be protected by a version of the Package Travel and Linked Travel Arrangements Regulations 2018 (SI 2018/634) under which the trader is required to supply the consumer with listed types of information before the contract is concluded.

3. Para 5.19, F/n 77 - A chartered corporation can act contrary to its charter/constitution (as if UV), but at risk of its charter being revoked - and a member can seek an injunction to try and prevent any such UV action, while the corporation could apply to the Crown to alter its charter if a majority of its members so wish in order to legitimise such an otherwise UV action ( Gray v Trinity College, Dublin [1910] 1 Ir R 370 - but see also paras 5.20 & 5.21 on this case ). The UV rule proper applies to statutory corporations, which lack this ability to function as if a real person.

4. Para 12.38 - In short, damages for breach of contract are normally compensation for physical damage, losses, and injury suffered; the aim is to put Party X in the same position as if the contract had been performed by Party Y and so the damages are a substitute for the actual performance of the contract (as reaffirmed in Morris-Garner v One Step (Support) Ltd [2018] UKSC 20). The heads of loss include expectation, reliance, and restitution - with expectation being the primary interest protected by any such award of damages (what could Party X have expected to gain if Party Y had properly performed its obligations under the contract). As for losses by way of distress and disappointment as well as anguish and annoyance, such are not usually recoverable - except that, as discussed in the section above on the ‘Rycotewood’ case, there is the possibility that such losses might be covered in ‘failure to teach’ HE cases as in the ‘enjoyment’ or ‘holiday’ cases.

5. Para 12.115(v) - For the frustration of a contract ‘mere inconvenience, or hardship, or financial loss involved in performing the contract, or delay which is within the commercial risk undertaken by the parties, has been held insufficient to frustrate particular contracts’ ( Chitty, 2021, para 26.01 ). And a force majeure clause might anyway be taken to imply that the concept of frustration is excluded, short of truly catastrophic changes (para 25.061) - ‘the mere fancy that the contract has become more expensive to perform will not, unless the terms of the force majeure clause so provide, amount to force majeure’ (para 26.066). Within consumer contracts covered by CRA15 ‘it is likely that the term ‘force majeure’ is itself not plain and intelligible to the average consumer’ and hence will be unfair - and also unfair if the consumer is not given the right to cancel or is denied ‘a full refund in the event of’ the trader invoking any force majeure clause (para 26.088).

6. Para 16.09 - In London School of Accountancy and Management Ltd v HMRC [2022] UKFTT 239 (TC) the insolvent HEI did not succeed with a claim for a VAT refund of £780k.

7. Para 12.61 - See also HXA v Surrey CC plus also YXA v Wolverhampton CC [2022] EWCA Civ 1196 where it was noted that determining the extent of the assumption of responsibilities that then give rise to a duty of care ‘is still an evolving area of the law’; appeals pending…

8. Para 8.24, F/n 41 - ‘Gibson’s Bakery v Oberlin College’ reached the Ohio SC on 30/8/22 where the award of some $36m against OC was confirmed. The C had failed to prevent its staff and students engaging in an unreasonable, unjustified, and irrational series of protests falsely, maliciously, and recklessly accusing GB of racism and hence damaging the business: indeed, senior administrators within OC aided and abetted the students’ bad behaviour. OC did not succeed with a defence asserting that it could not reasonably be held accountable for student antics or the involvement of some staff in the protests.

9. Para 16.16, F/n 19 - The case of ‘BTI 2014 LLC (Appellant) v Sequana SA and others (Respondents)’ [2022] UKSC 25 ‘raises questions of considerable importance for company law’ and possibly for those few Us which are constituted as limited companies as well as for the many Us that operate trading companies. It is about the balance of the directors’ duty in terms of their acting ‘in good faith’ towards their members/shareholders as opposed towards the company’s creditors: if insolvency looks like being more than a mere risk the directors start to assume a duty towards creditors ahead of the actual kicking in of the IA86 provisions; they need to begin ‘to consider the interests of creditors along with those of members’ (until insolvency becomes ‘inevitable’ and so then ‘the interests of the members cease to bear any weight’ and those of the creditors become dominant). The turning point for bringing into consideration the interests of creditors is when the company is ‘bordering on insolvency’ or ‘doubtfully solvent’ or ‘potentially insolvent’ - and that is beyond the point at which insolvency is just a possibility or even a ‘real risk’ but not yet where insolvency is inevitable. Thus, if the directors in such a position were to transfer money from the company to the benefit of themselves or of the members and hence potentially at the expense of the sums available to satisfy creditors in a liquidation, the directors might be held liable to make good such money.

10. Para 21.28, F/n 107 - The UUK October 2022 guidance ‘Suicide-safer universities: sharing information with trusted contacts’ encourage ‘a proactive response to student suicide’ by ensuring the U can achieve the timely involvement of ‘families, carers, and trusted contacts’ under ‘clear policies and capabilities’ as to how & when to trigger such contact where ‘there are serious concerns about a student’s safety or health’. Students should have the opportunity to provide such contacts (‘contracting in’) - but Us ‘may make a risk-based and properly recorded decision to involve others’ even where the S has not provided such a contact. The document also urges the training of all staff who work with students so that they are better able to ‘recognise the signs that a student may be at risk’, ‘refer students to support’, and ‘escalate a concern that a student might be at risk’. The ‘rmp education’ document on ‘Risk Control in Higher Education: State of the Nation Report 2022’ makes the point that the insurers of Us are seeing mental health as ‘a growing risk in the sector’ with ‘steady levels of potential claims made’ (‘although not many have been successful’ - see paras 21.28/29 and 18.26 re two duty of care cases concerning the UofBristol).

11. Para 12.115 (viii) - The OfS has issued a ‘Student guide to industrial action’ (November 2021) which cross-refers to OIA guidance and decisions about Us seeking to rely on force majeure clauses, as well as to the 2015 CMA guidance on consumer rights for students.

12. Para 7.37 - The CA22 affects the Oxbridge Cs which use the UCEAs to enable disposals of property rather than relying on disposal procedures within CA11 or on a modernised investment/endowment statute of their own. The use of the UCEAs will no longer be possible, so Cs will need to update their Statutes or make use of the CA11 procedures (which are anyway being usefully amended by CA22 to be more flexible).

13. Para 13.14 - The interaction of academic freedom, of free speech, and of obligations under the EqA10 have come together in current disputes between Us and academic staff, notable the UofBristol’s dismissal of Professor Miller: there are two journal articles of interest - James Murray, ‘Examining the interaction between harassment under the Equality Act 2010 and the law protecting academic freedom and free expression on campus’ (European Human Rights Law Review, 2022, 4, 368-382); and Anthony Julius, ‘Willed Ignorance: Reflections on academic free speech, occasioned by the David Miller case’ (Current Legal Problems, 2022, 1-44).

14. Para 23.18, F/n 7 - On legal privilege see U of Dundee v Mr Prason Chakraborty [2022] EAT 150: not to be applied retrospectively!

15. Para 12.95 - The OfS has arranged with the National Trading Standards ((NTS) for enhanced enforcement action in HE consumer law cases, as a ‘legal backstop’ (just as the NTS acts for the ASA). The NTS will take appropriate civil and criminal enforcement action against Us in relation to the application of consumer protection laws to the U-S B2C contract to educate.

16. Para 12.107 - The ASA (7/9/22, ‘Rulings’) has found Leicester U to have issued a ‘misleading’ treat over its REF21 results: it had claimed its ‘Arts and Humanities research’ was ‘number 1 in the UK’.

17. Para 12.65, F/n 207 - The judicial deference towards expert academic judgment that provides/provided a wall against US educational malpractice claims may be beginning to be increasingly challenged in more recent court cases: the wall may be ‘crumbling’; A Gajda, 2009 (Harvard UP), ‘The Trials of Academe - The New Era of Campus Litigation’ (Ch8, ‘Of Injuries and Insults: Tort Law on Campus’). Similarly (Ch9, Promises, Promises: Contracts on Campus’) the courts are more willing to identify the U-S contract and to question a U’s ‘academic judgement’ defence for alleged breaches - ‘the wall of deference is crumbling fast’ as courts take a narrow view of what counts as academic judgement (citing, notably, ‘Sharick v Southeastern University of the Health Sciences’ (2002) in which one judge commented ‘judicial deference to university conduct becomes increasingly less defensible as bottom-line concerns motivate university actions and students seek a more consumer friendly product’): Mr S was awarded $4.3m for U’s ‘capricious’ (its decision ‘lacking any discernible rational basis‘) failure to graduate him as a doctor, based on his expected future income as a doctor in thd USA!

18. Para 12.48 - See CJ Humphreys & GJ Towl (eds), ‘Stopping Gender-based Violence in Higher Education’ (2023, Routledge): from which the following chapters may be helpful for a U reviewing its Sexual Misconduct policy - Ch6 on ‘consent’; Ch8 on ‘The legal framework’ and covering ‘the complaints process’ (citing AB v University of XYZ [2020] EWHC 206 (QB) - plus [2020] EWHC 2980 (QB) & [2020] EWHC 2978 (QB) - and also R (otao Ramey)v Governing Body of University of Oxford [2015] EWHC 4847 (Admin) ), and suggesting that any U investigation can run concurrently with any Police investigation since the latter need not preclude the start of the former, as well as noting the comments in ‘AB’ re legal representation for the responding student and making some criticism of the OfS for inactivity in not more firmly regulating its HEPs with respect to their approach to SM issues on campus; Ch10 at pp 186-189 provides a useful check-list for what good practice in SM procedures might look like; Ch12 on the ‘case management’ of SM complaints with Ch13 as an excellent ‘how-to’ guide on their ‘investigation’, including advice on ‘interviewing’ of the ‘Reporting Party’, of the ‘Responding Party’, and of any witnesses; and Ch20 on ‘the [potential] role of regulation’, noting the UUK’s 2016 ‘Changing the Culture’ as ‘a key turning point’ and subsequent HEFCE action by way of its ‘Catalyst Fund’ but sensible a less energetic approach under HEFCE’s successor OfS in issuing its ‘Statement of Expectations’ (April/June, 2021) and stopping short (so far) of imposing as a regulatory condition compliance with such ‘expectations’ (noting, however, that the OfS is currently monitoring HEPs’ progress in meetings its ‘expectations’ on a voluntary basis…). The UUK has issued (Feb, 2022) ‘Changing the culture: tackling staff-to-student sexual misconduct’ as a ‘Strategic guide to universities’; a detailed ‘Practical guide’ has followed (Sept, 2022); and a lengthy ‘Legal Briefing’ document notes the confluence of various aspects of law that now push Us towards a review of their policy in this area: possible OfS regulation (‘it is anticipated that the OfS may consider linking the statement [of expectation, as noted above] to its registration conditions, and intervention and enforcement powers, in the future’), ‘contract and consumer law’ (including the provision of what might be seen as ‘material information’ on the U’s SM policy, procedures, and support systems - as well as delivery of the service by the trader with reasonable skill & care perhaps encompassing the U’s SM policy and procedures), the general tort law relating to negligence, the Section 3 HSWA74 obligations upon Us, the EqA10 requirements of Us, and HRA98 + ECHR expectations of Us, and the broad requirements of ‘natural justice’ imposed potentially by JR… All in all the ‘Legal Briefing’ proposes that it is time for ‘a shift away from a perspective [on ‘staff-student relationship policies’] which focuses on managing conflicts of interest towards a recognition that romantic, intimate or sexual relationships between staff and students are inherently problematic and should not occur’.

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TLHE UPDATE NOTES (NOV 2022)

Re Para 21.23 - Thoughts on the idea of a broad generalised duty of care, negligence, and the U-S legal nexus (page references are to TLHE 2021 third edn - and see previous Law Updates relating to those pages).

1. We leave aside whether the U has any contractual obligation (express or implied) to ‘look after’ the S in every way 24/7 - almost certainly not; just an obligation to deliver teaching, examining, and related support services such as library provision with skill & care (see pp 511-544 on ‘The student as consumer’ and the Consumer Rights Act 2015) and hence where breach of the contractual term might leave the U liable to the S for paying damages. But care is needed if, say, the U starts to boast of its extensive welfare & counselling resources - which when acutely and urgently needed by a particular S fail that S: could there have been breach of a new implied term that the U-S contract will ensure U provides timely and adequate welfare support? The recent U of Exeter incident where a Coroner has severely criticised (Nov 22) the U for failings in its welfare processes might be an example of a possible breach of an implied term to provide timely and adequate welfare support?

2. We also leave aside whether the U has deliberately or inadvertently assumed a wide, generalised duty of care in tort to ‘look after’ the S in every way 24/7 - deliberately, surely not; inadvertently, possibly and unwisely (as above). But we, of course, recognise the duty of care in tort (pp 485-494) to provide teaching, examining, and related support services such as library provision with appropriate skill & care: and thus the overlap with the contractual obligation as above.

3. We also recognise the duty of care upon the U under the Occupiers Liability Act to provide safe premises (pp 707-711), as also under H&S legislation as well as generally in tort by way of avoiding acts that cause harm to S (pp 776-785) - say, unsafe lab practices, ill-designed/maintained residential accommodation, slip/trip hazards, under-planned/resourced field-trips. There will also be obligations of various kinds under the Equality Act 2010, notably in terms of reasonable adjustments in response to disabilities (pp 717-725).

4. Here the issue is whether the U has a wide, generalised duty of care (where the law then attributes liability for carelessness) for the physical and mental welfare of the S as an adult over whom it has limited control (cf school pupils) and has such 24/7? - and also for its omissions rather than just its commissions/acts?

5. In determining whether there is such a novel duty of care (so far, albeit only at County Court level, no such duty has been identified - see the U of Bristol case at the August 22 Law Updates, n 14) the Court might explore: whether it was foreseeable that the S would come to harm, whether U’s relationship with the S was of such proximity for U to be responsible for S’s welfare, and whether it is fair, just, and reasonable for U to be ordered to owe such a duty of care. But mere foreseeability of the possibility of harm does not in itself create a duty of care; there needs, arguably, to be a (deliberate or inadvertent) assumption by the U of a new extended duty and then the U’s actions then creating a danger/risk of harm, as well as the U demonstrably having in theory some level of control over the student.

6. If a duty of care were found, the Court would then need to decide whether the U had breached its duty and, if so, whether that breach was caused by U’s negligence and had caused S measurable harm of a kind that can be compensated in money terms and which is not too remote as to have not been foreseeable as arising from the new duty of care.

7. But the law of tort imposes no obligation upon X when in a legal relationship with Y that otherwise creates a duty of care to be liable for X’s omissions as opposed to X’s positive acts - other than parents, of course, having an in loco parentis duty to protect their children and also certain fiduciaries having a positive duty to protect the interests of beneficiaries. The law finds liability in certain circumstances where X’s carelessness has positively inflicted harm on Y but usually not where X has failed to do something - the law does not demand that X become ‘my brother’s keeper’.

8. So, given the current concerns about student mental health and also surrounding Us dealing with sexual misconduct allegations as well as the safety of Ss on and off campus by way of vulnerability to crime, is the U under a wide, generalised duty of care to be the protector of the adult S on an extensive and 24/7 basis? And not only in relation to the efficiency of whatever relevant support services it has acted to provide (eg its Counselling Service, its Security Services, its Sexual Misconduct Investigation and Support Service)? - but also for any omissions in not providing a level or type of service that an S later asserts should have been available? Should Counselling be accessible 24/7, should safe transport be laid on for ‘clubbing’, should first-aiders be available for dealing with drunk Ss in the early hours? The politics of HE might well suggest the U should be under such an obligation by way of a new wide duty of care, but the Courts are, arguably, unlikely to impose such - and especially not for U’s omissions as recent UKSC cases have confirmed.

9. It is noted, however, that, following the County Court case (mentioned above) finding no novel generalised duty of care, there have been calls for a statutory duty of care to be created governing the U-S legal relationship - and, of course, a higher court at any time could perhaps identify a new wider common law duty of care of this generalised nature having as a matter of public policy found it fair, just, and reasonable to do so and thereby having used judicial discretion to extend the boundary of common law tort by making the U the ‘keeper’ of the safety and well-being 24/7 of the adult S…

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TLHE UPDATE NOTES (NOV 2022) 2

Re possible ‘group litigation’ and para 12.115 (pp 537-544)

1. As we noted in para 12.115 of the 2021 third edn and in its subsequent online Law Updates, there has been a lot of class-action litigation in the USA as students sued Us seeking partial refunds/reductions in fees because Covid disruption altered the means of teaching delivery from F2F to online (the latter allegedly inferior) and also restricted access to campus facilities. Such litigation has been generally unsuccessful given that courts have not been able to identify an express term in the cloudy and skimpy U-S contracts to educate that specifically promised F2F teaching. Thus, only a few cases have resulted in the U having to refund particular fees concerning accommodation, campus travel plans, campus catering, campus recreation facilities where access to campus life was curtailed - and which inexplicably they had refused to refund! A few more claims have been referred back from the appeal courts where it seemed that an implied term of F2F T might be discerned amidst the stuff supplied to Ss and especially where the U already ran an online version of the degree course that carried a lower tuition fee so there was a benchmark as to how the online version cost less than the F2F version.

2. And now (November 22) the possibility of such class-action litigation has arrived in the UK - subject to the High Court at a hearing scheduled for February 2023 approving a ‘group litigation’ bid based on, it appears, some 3500 students and former students at UCL as a test case for what might be 20k+ students and former students across some 20 Us. There is media talk of each claimant getting an expected average payout of £5k - so a potential class-action claim for £100m (sic), with the no-win/no-fee law firms taking 35% of the winnings! The Us named include: UCL, LSE, KCL, M/cr, Birmingham, Warwick, Nottingham, Cardiff. Some of that hoped-for £5k might also be for lost teaching as a result of the strike action at certain campuses over the past year of so, as well as perhaps an amount as ‘disappointment damages’ (see Rycotewood at pp 454-458).

3. Joining the group action is free and easy via the website - StudentGroupClaim.co.uk - and recent media publicity may well see that number of 20,000 increase significantly…

4. The website’s FAQs page seems to suggest that there is no need for the claimant first to have exhausted internal complaints procedures and then also a referral to the OIA - the High Court might yet take a different view? The OIA is supposedly circumvented on the basis that it will not address an issue of whether online provision of teaching is of lower quality than F2F since that would engage ‘academic judgement’ as territory excluded by the OIA’s founding statute (and, of course, the courts also normally do not second-guess academic judgement - pp 466-472). The claim appears to be for ‘breach of contract and trust’ in that ‘promises’ within the U-S contract have, supposedly, not been fulfilled - ‘promises’ presumably of F2F teaching and of the full campus experience - as Us resorted to online or later hybrid teaching and Ss stayed at home or were isolated in halls with libraries, gyms, bars, refractories, and other campus facilities shuttered. Yet if breach of contract by way of different T-delivery and non-access to facilities is the issue, rather than a matter of judging whether online T is inferior to F2F T, then such a complaint is surely within the remit of the OIA and hence, as noted, the Court might expect the OIA route to have been utilised prior to litigation (pp 498-507) - just as, as with any litigation, the Court might expect a try at mediation (pp 808-828 re ‘Dispute Management’).

5. As rehearsed in para 12.115 and its online updates, while Us might not be able to fend off any group litigation by invoking a force majeure clause, they might - having first called for use of the OIA as above - seek to argue that there has anyway been ‘substantial performance’ (T was delivered albeit in an unfamiliar form, examining & assessment happened, and degrees were duly awarded), as well as perhaps asserting that Ss were notified in the run-up to 20/21 of proposed changes to T-delivery and by returning or commencing they accepted the amendment of the U-S contract by way of specific reference to online or hybrid delivery of T? They might also assert that anyway the vague U-S contract has no express term about the form of T-delivery? - and that there are no implied ‘promises’ to be inferred from all the paraphernalia of course handbooks etc? As for the strikes component of any claims, the Us might point at the OIA’s award of some £150 per week of lost T and simply offer to settle at that?

6. That said, the incentive of a 35% no-win/no-fee share of a potential £100m pot of damages will mean the group-litigation’s lawyers will put in a lot of high-grade legal effort, while the threat of a very costly payout doubtless means the collective of Us will fund equally hefty lawyer fire-power! Assuming group-litigation is permitted and assuming there does not have to be a mass referral to the OIA, we may yet get, as the claim reaches the Court of Appeal or even the UKSC, the needed clarification on the exact nature of the U-S contract to educate as a B2C contract covered by the CRA15 - and, wow, perhaps at last the introduction of a clear, comprehensive, robust, and fair U-S standardised contract (see OxCHEPS Occasional Paper No.60) that the co-author of The Law of Higher Education, Emeritus Professor Dennis Farrington, has been calling for since the early-1990s… (c)

DP, 2/11/22

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TLHE UPDATE NOTES (DEC 2022)

Para 12.95 - The OfS has issued guidance on HEPs compliance with its regulatory framework (Conditions B1 & B2, and also C1 re general consumer protection law) as well as reminding HEPs of the 2015 CMA guidance to HEIs re the application of such consumer protection law in relation to a U’s use of ‘blended learning’: ‘Blended learning and OfS regulation’, OfS 2022.63, 19/10/22. This follows from the OfS review of the use across HE of blended learning - ‘Blended learning review: Report of the OfS appointed Blended Learning Review Board’, OfS October 22 (see also Barber, ‘Gravity Assist: Propelling higher education towards a brighter future - Report of the digital teaching and learning review’, Feb 2021, OfS website).

Para 12.148, FN 392 - In ‘Catherine Galbraith v Dublin City University’ [2022] IEHC 520, [2022] No.731 JR, Ms G was unsuccessful in seeking JR of the U’s academic decision as ‘the dispute arising is not a matter that is properly amenable to judicial review’ given there was ‘not a sufficiently public element’, it being a matter of private contract law and anyway was also relating ‘to matters of academic judgement’. The judge was, however, very sympathetic to Ms G and appended to the judgement a kindly letter he had sent her!

Para 19.11, FN 24 - In ‘High Speed Two (HS2) Ltd v Four Categories of Persons Unknown’ [2022] EWHC 2360 (KB) anticipatory injunctive relief covering the whole of the HS2 route from London to Crewe was issued so as to restrain trespass and unlawful protests hindering construction.

Para 18.08 - ‘Martyn’s Law’ (arising from the terrorist bombing of the Manchester Arena in 2017) will be added to the Prevent Duty-Holder obligations from August 23: requiring protective security and organisational preparedness at publicly accessible locations, including HEI campus buildings, via specialist risk-assessment and risk-mitigation planning.

Para 21.32 - The OfS has issued OfS Insight 15 (Nov22) on ‘Tackling sexual misconduct in universities and colleges’ based on the SUMS Consulting ‘Evaluation of the Initial Impact of the [OfS] Statement of Expectations - Final Report’ (10/11/22); the former points towards an OfS ‘prevalence survey’ to come, along with a ‘consultation’ about adding to the regulatory framework so as to turn ‘expectations’ into requirements/conditions… See also para 12.48 and its Update in Batch 6.

Para 7.05 - The CC (10/11/22) ‘has issued a s75A CA11 ‘Official Warning’ to Christ Church College, Oxford ‘after finding that the trustees [its Governing Body of Fellows] failed to manage the charity’s resources responsibly’ (‘long and costly disputes with its former Dean’ had incurred some £6.6m (sic) in ‘legal and public relations fees’ and the GB seems not to have had the necessary ‘close oversight’ of the process for incurring such expenditure, AND the C had failed adequately to identify such spending within its annual accounts. All in all ‘failures and omissions’ that ‘amount to misconduct and/or mismanagement’. The CC requires ‘ a full independent Governance Review’ and clarification in the next set of annual accounts. Interestingly the CC website notes that use of s75A implies no intention to use the more draconian s76 which allows the CC to suspend trustees and appoint an ‘interim manager’…

Para 18.10, FN 59 - And the High Court recognises that a danger which is obvious does not trigger a duty of care under OLA57, that accidents do happen without any entity being liable: ‘Juj v John Lewis Partnership plc’ [2022] EWHC 2418 (KB). Here a raised curb adjacent to a disabled parking space in a Waitrose car-park was an obvious trip-risk that did not require warning signs etc.

Para 20.14 - The Tenant Fees Act 2019 now applies to HEI-student agreements re use of HEI accommodation and hence HEI ‘contracts’ will need updating.

Para 12.95 - The OfS now (late-2022) has struck the same deal with Trading Standards as the ASA set up in 2013, whereby TS acts on behalf of either at its request as a ‘legal backstop’ to prosecute entities under consumer protection law.

Para 21.32 - The Building Safety Act 2022 amends the Defective Premises Act 1972 and imposes much more stringent obligations on those involved in designing, building, owning, and managing residential accommodation (including HEIs), and is the outcome of the dreadful Grendel tower-block fire.

Para 12.115 (viii) - The OfS has reissued its Nov21 guidance to HEPs re renewed industrial action during 22/23: ‘Briefing Note - Disruption to students caused by industrial action’. Providers should: ‘take all reasonable steps to avoid or limit disruption to students… [and] make up for any teaching time or learning that students might loose’ while they could ‘offer full or partial fee refunds or ensure that all lost teaching time is made up without detriment to students…’ - and in addition they should ‘communicate regularly and clearly with students to ensure they understand the impact that disruption will have on their studies and the steps being taken to mitigate the impact of any disruption… while also maintaining standards’. Providers are reminded of relevant consumer protection law - notably that ‘students may be entitled to repeat performance or price reductions’ along with the limits on HEIs being able to alter the U-S contract or to exclude liability ‘for non-performance or substandard performance’. The OfS guidance gives links to the OIA’s 2018 briefing note on its approach to complaints from students relating to industrial action and to its case-studies which inter alia have ‘often recommended partial tuition fee refunds’. Similarly there is reference to the 2015 CMA guidance to HE. Finally the OfS note reminds Us that disruption from industrial action could trigger the need to make a ‘reportable events’ submission to the OfS as set out in OfS ‘Regulatory advice 16: Reportable events’ (Jan 22) - one wonders if a U being caught up in the potential class-action litigation partly arising from students claims over previous industrial action might amount to such an event (see LU Nov 22, No. 2)….

Para 13.02 - The OfS has issued ‘Insight 16 (December 2022): Freedom to question, challenge and debate’ concerning campus freedom of speech and academic freedom, and also on its potential duties under the Higher Education (Freedom of Speech) Bill if/when enacted… (see LU Batch 1 at paras 9.24 & 19.13). In ‘Lisa Keogh v U of Abertay’ [2022] SC DUN 40 Ms K lost her crowd-funded claim for damages from U for its alleged breaches of Eq10 and of her ‘human rights’ arising from the U’s handling of a disciplinary process triggered by her supposedly making ‘gender critical’ comments in a seminar over which other students complained; the process found Ms K not to have breached any of U’s policies, and the Court in turn found that it was not discriminatory against Ms K ‘gender critical beliefs’ nor her freedom to express them when U launched an investigation and disciplinary process as it reasonably had to in light of the complaints.

Para 21.28 - In ‘Elis for Rachael, Inc v Yale U’ (Case 3:22 - cv - 01517, filed 30/10/22 in US Dist Ct of Connecticut) a class-action is brought against YU over its alleged ‘systemic discrimination against students with mental health disabilities’, the U allegedly failing to make reasonable adjustments and instead aiming to force such students to terminate.

Para 7.15, FN 36 - See Alexander Herman, ‘Museums, Restitution and the New Charities Act’ in ‘Art Antiquity and Law’, Vol XXVII, Issue 3, Oct 2022: the CA22 means that charity trustees might now be able to dispose of charity property by way of an ex gratia ‘payment’ and including where they decide on the restitution of cultural objects for strong moral reasons (eg returning Benin Bronzes from university museums and Oxbridge college collections).

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TLHE UPDATE NOTES (JAN 2023)

1.04 In December 2022, a Memorandum to the Education Select Committee, CP764, was a post-legislative scrutiny of HERA17. The document contains an analysis of the implementation of the Act: including the formation and activities of the OFS and UKRI. It is essential reading to accompany Chapter 4 of this book.

1.38 Merger of three Institutes of Technology (Galway-Mayo IT, IT Sligo and Letterkenny IT) in 2022 formed the Atlantic Technological University; there are now five such TUs (TU Dublin, Munster TU, TU of the Shannon: Midlands Midwest, South East TU and Atlantic TU) with Dundalk IT in process of considering joining a TU.

2.22 A lengthy dispute about alleged anticompetitive practice in the supply of academic dress to students for graduation ceremonies resulted in a 70-page 224 paragraph judgment of the Competition Appeal Tribunal: (1) Churchill Gowns Ltd (2) Student Gowns Ltd v (1) Ede and Ravenscroft Ltd, Radcliffe and Taylor Ltd, Wm. Northam and Company Ltd, (4) Irish Legal and Academic Ltd [2022] CAT 47. CG and SG unsuccessfully claimed against the defendants under s47(A) CA98 for loss and damage caused by alleged breaches by the defendants of s18 CA98 (the Chapter II Prohibition) and/or s2 CA98 (the Chapter I Prohibition). The judgment of Zacaroli J is detailed and worth reading in full.

3.12 It was announced in September 2022 that Multiverse, an apprenticeships provider run by Euan Blair, son of the former prime minister, had become the first such provider to be granted degree-awarding powers.

10.12 In Heal v (1) Oxford Health NHS Foundation Trust; (2) Chancellor, Masters and Scholars of the University of Oxford; (3) Principal and Fellows of the Manchester Academy and Harris College in the University of Oxford; (4) Health Education England; (v) Secretary of State for Health and Social Care [2021] UKET 33327/12/2018 all H’s claims of disability discrimination were dismissed. He had complained in Heal v Chancellor, Masters and Scholars of the University of Oxford [2019] UKEAT 0070_19_1607 that the ET should have allowed his application to bring a recording device on the papers rather than at the preliminary hearing. The EAT dismissed his appeal.

10.13 In Kerr v University of St Andrews (Scotland: Redundancy) [2022] UKET 4111529/2021, U unsuccessfully sought to strike out K’s application, K was represented by a paralegal, and some issues remained unclear.

10.14 In Radeljic v University of East London (England and Wales: Breach of Contract) [2021] UKET 3201164/2020, a judgment of 274 paragraphs, 62 pages, the ET found that R suffered detriment for protected disclosures, and his constructive dismissal was automatically unfair. Awards of £6300 (basic award), loss of earnings, loss of statutory rights (£400), injury to feelings (£20,000), personal injury (£12500), and an ACAS uplift depending quantification of remaining sums to be awarded. It was also a wrongful dismissal, for which he was awarded the 3 months’ notice pay to which he was entitled. The parties were given two months to agree on remedies for outstanding issues. The ET found failure by U to comply with the ACAS Code of Conduct in several respects.

10.20 In Sanson v University of Stirling and Forth Valley Health Board [2022] UKET 4113844/2021 the ET decided that S, a student on clinical placement, was neither an employee of U nor a worker, so could not bring a claim of direct discrimination under s13 EqA. In the related case Sanson v Forth Valley Health Board (Scotland: Health and Safety) [2021] UKET 4105339/2020 another ET decided that S’s claim of detriment for making public interest disclosures failed. The issue of status under s 230(7)(b) EmpRA96 of self-employment arose in Catt v English Table Tennis Association [2022] UKEAT 125, where the EAT issued some guidance on the distinction between employees and self-employed in remitting C’s case to a new ET.

10.22 add (vi) Leaney v Loughborough University [2022] UKET 2600806/2021 was the second recent case involving wardens at U’s halls of residence (see Update 1: Sobnack). The EJ was ‘satisfied legally’ (at para 13 of the judgment) that it was possible for L to be employed by U as a warden, and separately to be employed by U as a lecturer, although U had argued that the position of warden was an ‘office’ not employment. The EJ stated he did not understand on what basis U believed that, but it is clear that U took the position that the academic staff disciplinary procedure set out in Ordinances was not applicable to wardens. In his 213 paragraph, 46-page judgment, the EJ found the position of wardens ‘somewhat confusing’ with numerous ‘badly, clumsily and amateurishly’ drafted documents, some unsigned. In the event, L unsuccessfully claimed constructive unfair dismissal from his position as warden. This case and that of Sobnack are worth studying by any HEI which employs wardens – or indeed any other form of ‘office’-holder - on separate contracts from their academic roles. The judgment also goes into some detail about the role and actions of senior management and their legal advisers in handling of disciplinary matters and grievances and although the precise set of circumstances might not arise elsewhere, is worth reading to help to avoid similar problems arising at other HEIs.

10.35 Note also Watson v Durham University [2008] EWCA Civ 1266 concerning suspension of an academic member of staff pending disciplinary proceedings. In this case an injunction was granted lifting the suspension.

10.42 In Griffiths-Baker v Cardiff Metropolitan University et al (England and Wales: Breach of Contract} [2022] UKET 1601135/2020, parts of G-B’s claim were struck out. This related to the withdrawal of an offer of employment accepted by G-B when concerns arose about the information she had provided and/or failed to provide about her health during the recruitment process. In striking out the claim, the ET referred inter alia to Anyanwu and anor v South Bank Student Union and anor and Commission for Racial Equality [2001 UKHL 14 – see para 11.25 in the book. The ET stated that it had no jurisdiction over G-B’s claim under s 60 EqA since this is a matter for the Equality and Human Rights Commission. The case continues in respect of the claims not struck out.

10.73 add ‘Out of time’ cases continue to occur in the HE Sector, particularly for litigants in person: e.g. Vanga v University of Hull [2021] UKET 1905211/2020; Crook v SOAS, University of London (England and Wales: Public Interest Disclosure) [2022] UKET 2204176/2022; Anghel v Middlesex University (Practice and Procedure – time for appealing) [2022} UKEAT 176. A long and useful discussion of the relevant rules on out-of-time applications is found in the unsuccessful claim Mabrouk v New College Leicester (England and Wales: Disability Discrimination) [2022] UKET 2603138/2021.

10.75 In Law v The University of Cumbria (England and Wales: Maternity and Pregnancy Rights) [2022] UKET 2415967/2021, L was unfairly dismissed, in part discrimination on grounds of pregnancy, ss 18 and 39 EqA, following a series of fixed term contracts. The ET commented that the case ‘has an air of a game of musical chairs, in which, entirely coincidentally, the music stops just as the pregnant [L], with her four-year record of good service, adaptable skills and excellent feedback, is the one left furthest away from the remaining chairs.’

10.76 Another case arising from the end of a series of fixed-term contracts (in this case over 16 years) is Moghaddam v Chancellor, Masters and Scholars of the University of Oxford et al (England and Wales: Contract of Employment) [2022] UKET 3314883/2019. M unsuccessfully claimed unfair dismissal, race discrimination, disability discrimination, whistleblowing detriment, failure to provide written statement of amended terms and conditions, and a declaration that M was a permanent employee of U. This 46 page, 249 paragraph judgment followed 13 days of hearings and 2695 PDF pages of evidence. It is worthy of study by HEIs and their advisers faced with similar claims after multiple renewals of fixed term contracts dependent on research funding.

10.78 Ross v Board of Management of Glasgow Clyde College (Scotland: Breach of Contract) [2022] UKET 4100143/2021 was a successful claim of constructive unfair dismissal, with a reduction in compensation of 25% under s 207(A) EmpRA96 for unreasonable failure to submit a grievance. There were a number of failures by C, and the case has some similarities with Buckland v Bournemouth University HEC [2010] EWCA Civ 121, extensively referenced in the book.

10.79 Costello v The City of Liverpool College (England and Wales: Unfair Dismissal) [2022] UKET 2402674/2022 was an unsuccessful claim of constructive unfair dismissal, C being a litigant in person. The case is interesting because it contains a detailed analysis of the legal authorities on constructive dismissal, going back to Lewis v Motorworld Garages [1985] IRLR 465 – see paras 10.79, 10.81 in the book.

10.98 In Abdullah v University of Glasgow (Scotland: Maternity and Pregnancy Rights) [2022] UKET 4103216/2022, A, a litigant in person, alleged discrimination on the grounds of pregnancy/maternity and also on the basis of religion or belief. A was given permission to amend her claim, but not in respect of automatically unfair dismissal. A was required to provide more information, and the case continues.

10.103 Hernandez-Hernandez v University of Warwick [2022} UKET 1300577/2021 was a case of redundancy in which it was found impracticable to order re-engagement, but some awards were made in addition to the redundancy payment received by H-H.

10.105 In University of Dundee v Chakraborty (practice and procedure; case management order for production of a document; legal professional privilege) [2022] UKEAT 150, C was a litigant in person whereas U was represented by a KC. The EAT ordered production of an original report on a grievance, ruling that no privilege attached to it. The case was remitted to an ET.

11.13 n.8 See further Piepenbrock v London School of Economics and Political Science [2022] UKEAT 119, in which LSE successfully sought an order to protect the identity of Ms D, a young woman about whom, quoting the EAT, ‘ [P] had made lurid allegations, which the ET has found to be untrue.’ The EAT found that Ms D’s Article 8 rights took precedence.

11.24 add (xxiii) Njoroge v University of the Arts London et al (England and Wales: Disability Discrimination; Race Discrimination; Sex Discrimination; Unfair Dismissal) [2017] UKET 2207747/2016 and 220042/2017 was an unsuccessful claim against, inter alia, the Vice-Chancellor at the time.

11.29 add (xiii) In Gray v University of Portsmouth (Disability Discrimination) [2022} UKEAT 2019-000891, G successfully appealed an ET finding that he had not been discriminated against on grounds of disability. G’s dismissal had not been a proportionate means of achieving U’s legitimate aim of ensuring the efficient running of its Information Services Department. The EAT applied Hardy & Hansons plc v Lax [2005] EWCA Civ 846.

11.31 add (vii) In Glasby v Edge Hill University (England and Wales: Disability Discrimination) [2022] UKET 2406453/2019, where G was a litigant in person, a majority of the ET ruled that a claim of disability discrimination succeeded. G’s dismissal was discriminatory, as was failure to disregard previous periods of disability-related sickness absence when applying U’s sickness absence policy. The EJ dissented.

11.31 (add (viii) In Paterson v Edinburgh Napier University (Scotland: Disability Discrimination) [2022] UKET 4111140/2021, the ET held that P, a claimant in person, was a disabled person, referring inter alia to Morgan v Staffordshire University [2002] IRLR 190.

14.53 In Oxford University Innovation Ltd v (1) Oxford Nanoimaging Ltd and (2) Chancellor, Masters and Scholars of Oxford University [2022] EWHC 3200 (Pat) the court decided, inter alia, that U owned the intellectual property in a DPhil student’s work. The court undertook a lengthy examination of the nature of the contract between U and the student concerned, and decided that U’s claim to IP generated by DPhil students generally was not ‘unfair’ in terms of consumer protection law. This case is worthy of study by all HEIs awarding doctoral degrees.

15.17 n 60 See also the decision of the FTT (General Regulatory Chamber) Information Rights, involving the Cabinet Office, University of Southampton, The Information Commissioner and Dr Andrew Lownie, appeal references EA/2020/0021; EA/2020/0026; EA 2020/0058; EA/2020/0059; EA/2021/0125 concerning the ‘Nehru papers.’

24.23 Thiab v Western Sydney University [2022] NSWSC 760 was a decision of the Supreme Court of New South Wales, a challenge to cancellation of student T’s clinical placements due to T’s expressing scepticism about safety of the SARS Covid-19 vaccination and whether this was discriminatory as being a ‘religious or political’ view, protected by U’s governing statute. The court concluded that U’s actions in cancelling T’s clinical placements and deciding not to allocate any other placements was unlawful, contravening s.35 Western Sydney University Act 1997. In the course of a long judgment, many anti-discrimination and other statutes were cited, including the Oxford University Act 1854.

24.30 Sommerville v University of Tasmania [2022] FWC 1582 was an unsuccessful claim of unfair dismissal following S’s refusal to be vaccinated against SARS Covid-19. S was unable to perform her role without breaching U’s ‘Covid-19 Safety Procedure.’

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TLHE UPDATE NOTES (MAR 2023)

1.04 In Wales, the Tertiary Education and Research (Wales) Act 2022 asc1 (TERWA22) extensively amends earlier legislation, including replacing HEFCW with a new Commission on Tertiary Education and Research with a number of powers and duties similar to but not as extensive as those of OfS. In Northern Ireland, the Public Services Ombudsman (Northern Ireland) Act 2016, Act of the Northern Ireland Assembly c4, transferred to the Ombudsman the determination of student complaints, replacing the Visitorial jurisdiction. This change was omitted from the 3rd edition.

1.09 The latest Regulations are the Education (Student Fees, Awards and Support) (Amendment) Regulations 2023, SI 2023/74.

1.16 It appears that the Universities of Oxford and Cambridge are specifically mentioned in s 8 Statutory Declarations Act 1835 because non-conformists and Quakers objected on religious grounds to taking oaths, common in those HEIs at the time. The Act also provides that ‘such Statutes, Bye Laws or Orders be otherwise duly made and passed according to the Charter, Laws or Regulations of a particular University.’

1.24 n 135 The University for the Creative Arts, formerly the University College for the Creative Arts at Canterbury, Epsom, Farnham, Maidstone and Rochester, has announced the closure of its Rochester campus from September 2023.

1.29 n 172 UHI is a ‘relevant authority’ under s 7(1) Islands (Scotland) Act 2018 asp 12, and as such must ‘have regard to’ island communities in carrying out its functions.

2.10 n 19 See now the European University Institute (EU Exit) Regulations 2022, SI 2022/1231.

2.16 In Croskery’s (Andrew) Application [2010] NIQB 129 the High Court of Justice in Northern Ireland rejected C’s argument that his rights under the EHCR, specifically Article 6, were engaged in his dispute with Queen’s University Belfast over the award of a 2.2 rather than a 2.1 honours degree. The court reviewed the Strasbourg jurisprudence at the time, holding that the determination of C’s degree classification was a right of a civil nature. There was also no denial of the right to education under Article 2 of the First Protocol to the ECHR.

3.13 Add: The Power to Award Degrees etc (University for the Creative Arts) Order 2022, SI 2022/923. The grant is for three years in the first instance.

3.39 Section 139 TERWA22 amends the existing law in respect of dissolution of higher education corporations in Wales.

4.06 n 28 The jurisdiction of the Visitor in this respect was replaced from October 2016 by that of the Public Services Ombudsman for Northern Ireland (change omitted from the 3rd edition.)

4.20 See also The Higher Education (Investigation Fees) (England) Regulations 2022, SI 2022/1191, the first Regulations to be made under s 171 HERA17.

4.72, 4.74-4.78 TERWA22 amended existing higher education legislation in Wales, including s17 on academic freedom and s18 on institutional autonomy.

4.79 n 255 See Update to 4.06 n 28.

5.37 See also Order of Council of 10 August 2022 amending the Statutes of the University of East Anglia to permit payment of its Chair of Council up to £30k p.a., reviewable every three years.

5.40 Sections 137 and 138 TERWA22 amend the existing law in respect of instruments of government and articles of government of Welsh higher education corporations.

6.07 See update to 5.37.

10.31 add (ix) In Wilkinson v Coventry University Student Union [2023] UKET 1301353, W, a complainant in person, was found to be disabled by reason of dyslexia and dyspraxia. The ET referred to the analysis and survey of the law in Elliott v Dorset County Council [2021] IRLR 880 at paras 16-62. This is worth reading by HEI HR officers.

10.73 add Other ‘out-of-time’ cases were Milnes (in part) (10.79) and Hewitson v Edge Hill University [2023] UKET 2418046/2020, where H had complained of a failure to make reasonable adjustments. All other complaints in H’s case were dismissed.

10.79 In Milnes v Imperial College of Science, Technology and Medicine [2022] UKEAT 2201868/2019 and 2204479/2019, M had been employed on a fixed term contract initially from January 2018 for six months, extended to September 2020, but resigning in September 2019. M appeared in person. The ET hearing was about 12 days, culminating in a decision of 133 pages and 593 paragraphs plus appendices, a significant time being taken up with procedural issues. All of M’s complaints were ruled out of time, others alleging disability discrimination, victimisation, detriment as a result of making a protected disclosure and constructive dismissal, all failed. The ET specifically commended the 14 witnesses for ICSTM for being blameless, impressive and in the way they conducted themselves both at the time of the events which gave rise to the hearing, and at the hearing itself.

10.79 Another ‘in person’ case was Dyer v University of London [2023] UKET 2207658/2020, a 6-day hearing, a decision of 30 pages and 240 paragraphs, 25 of which discussed an unsuccessful attempt to have the ET recused. This was an unsuccessful claim of constructive dismissal, plus claims of direct discrimination, harassment, victimisation, breach of contract, failure to deal with a statutory request for flexible working hours, all of which were dismissed.

11.08 In Hughes v TEC Partnership t/a The Grimsby Institute for Further and Higher Education [2023] UKET 2600146/2021, H succeeded in his complaint that his line manager subjected him to direct discrimination on grounds of sexual orientation by providing a reference for him to a potential new employer. A number of other complaints were dismissed.

11.08 In Penalwa v Teesside University [2023] UKET 2500896, P was unsuccessful in complaints of discrimination on grounds of sex, race and philosophical belief, when not selected for a promoted post. He claimed that an all-female interview panel displayed a ‘clear-cut hate’ towards him.

11.15 and 11.17 n 96 The Worker Protection (Amendment of Equality Act 2010) Bill to expand the duties and potential liabilities of an employer in relation to sexual harassment in the workplace, is expected to become law in 2023.

11.24 A rare successful claim of direct discrimination and victimisation on grounds of race is Sharma v University of Portsmouth [2022] UKET 1401014/2021. This decision has 67 pages with 377 paragraphs. Among other remarks, the ET was critical of U in its refusal to provide S with access to certain documents… ‘result of a deliberate attempt to prevent [S] from seeing documentation which might support her claim’… a ‘deliberate failure by [U] to cooperate with [S]…victimisation by [U].’ As at the date of this Update there is no further information on remedies etc.

13.11 Section 17 Tertiary Education and Research (Wales) Act 2022 asc1 (TERWA22) replaces the duty on the HEFCW to ‘take into account’ with ‘have regard to’ which appears to be a stronger protection of academic freedom.

13.18 See also the Defamation Act (Northern Ireland) 2022, Act of the Northern Ireland Assembly c.30.

14.53 See also Oxford University Innovation Ltd v Oxford Nanoimaging Ltd (Re Consequentials) [2023] EWHC 138 (Pat). The general points on permission to appeal (paras 44 and 45) note, inter alia, that the costs ONI have had to pay in defending the claim already exceed the royalties paid to date.

14.61 Note also Cleeves v University of Oxford [2017] EWHC 702 (QB).

19.13 The Higher Education (Freedom of Speech) Bill is at the time of this Update in ‘ping-pong’ between the Houses of Commons and Lords, expected to become law in some form in 2023.

23.05 n 5 See also the Cleeves case in 14.61.

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TLHE UPDATE NOTES (APR 2023)

Para 7.39 - Re ex gratia payments: CA11 is now amended by CA22. There is an objective test for s106 ex gratia payments to be made with CC approval; but s331A allows such under £20k without CC approval (£20k to any one person in any one year, with no limit on number of such individuals). And s105 still permits, with CC approval, payments which are ‘expedient in the interests of the charity’.

Para 12.48 - Students continue to be assisted by Alpha Academic Appeals ( www.academic appeals.co.uk and 0800 368 9230): there is a team of 15 barristers which conducted some 200 ‘formal consultations’ during 2022 and wrote c140 ‘appeal statements’ as well as ‘attending dozens of university hearings’ (now also active in Australia).

Para 12.81 - A student undertaking clinical practice as part of a BSc Nursing degree is not an employee of the U: ET (Scotland) Case No. 4113844/2021, Samson v U of Stirling and Forth Valley Health Board (U terminated S on grounds of fitness to practice; given S not an employee, ET had no jurisdiction).

Para 12.93 - In Oxford University Innovation Ltd , Oxford Nanoimaging Ltd and Oxford University [2022] EWHC 3200 (Pat) the Court concluded that: a) an UG is a consumer given the CMA interpretation in its 2015 guidance to Us, the existence of CRA15, and the role of the OfS - and probably also under CJEU case law (Costea + Pouvin applied, Benincase + Gruber not pertinent), and even if the degree course is leading to a profession); b) as also is a PGT/PGR S, whether funded/sponsored or self-funding (except perhaps where the S’s employer is contracting with the U for delivery of a specific professional/vocational qualification); c) and hence the UCTD applies; d) while, specific to this case, Mr Jing was not being treated unfairly under the UCTD by the U applying its IP policy to him via his U-S DPhil contract; e) so the claim by ONI was not upheld that OU/OUI could not lawfully licence IP rights to ONI such that ONI (of which Mr J had become CEO) had to pay to U over £700k in royalties; f) and nor was U’s IP policy out of line with other HEIs so as to be unduly harsh as then perhaps to be unfair; and g) the Court commenting that ‘this case should have been resolved without the need for court intervention’. (See Ch13 re Us and IP for further commentary on this 651 paragraph judgement...)

Para 12.75, f/n 244 - The OIA Annual Report 2021 notes that 2763 complaints were received, that 43% of claims dealt with were found Not Justified, that some £240k was incurred by Us re Covid complaints by way of OIA awards or its influence on settlements, and that the OIA has introduced additional Rules for Large Group Complaints. For equivalent reports on HE complaints in Scotland see the website of the Scottish Public Services Ombudsman (SPSO); and, for Northern Ireland, the website of the Northern Ireland Public Services Ombudsman (NIPSO) - the latter taking over the Visitor’s jurisdiction in 2016.

Para 22.12 - One of the most bizarre insurance cases concerning a U is Allianz Insurance PLC v Exeter U [2023] EWHC 630 (TCC) where the insurer avoided a payout to U for damage arising from the controlled explosion of a WW2 bomb, the Court finding that the incident was within the War Exclusion clause in the A-U policy.

Para 20.18 - The licensing regime for Us is altered in Wales by the coming into force from 1/12/22 of the Renting Homes (Wales) Act 2016 and hence Us’ student accommodation is now treated as for any other privately rented residential accommodation; the carve-out from the Housing Act 1988 ends and Us can no longer rely on flexible licenses and must use a less flexible licence regime or assured shorthold tenancies.

Para 12.115 (ix) - The 150+ US class-actions re Covid tuition fee refunds continue to fail at the first hurdle (no express or even implied term being found pledging F2F T-delivery) but now at least three claims have been referred back to the lower courts after appeal courts found the possibility of an implied term in the U-S contract: see Omar Hernandez v Illinois Institute of Technology (27/3/23, No.22-1741 7th Circuit US Court of Appeals); this Court also found similarly in Gociman v Loyola University of Chicago 41 F.4th 873 in 2022). Meanwhile over here the 100,000+ group litigation awaits a hearing in the High Court in May…

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TLHE UPDATE NOTES (JUN 2023)

1.04 Add to the list of statutes The Higher Education (Freedom of Speech) Act 2023 – HEFSA23. The Act is a piece of amending legislation, affecting a number of paragraphs in Chapter 13 and also in Chapters 4 and 11. It primarily amends HERA17 but it also makes amendments to CTSA15, HEA04 and E2A86. S 12 sets out the territorial extent of this Act. Most provisions extend to England and Wales and apply to England. The provisions which amend CTSA15 extend to England and Wales and Scotland. One set of amendments applies to England only and two apply to England and Wales. These are consequential amendments and minor technical corrections. All changes to the text will be made in Updates as the Act is brought into force. Those sections coming into force immediately are s 7 (regulation of duty of student unions), so far as is necessary for enabling the exercise of the powers to make regulations conferred by s 69B(3) and (4) HERA17 (inserted by section 7); s 9 (overseas funding), so far as is necessary for enabling the exercise of the powers to make regulations conferred by s 69D HERA17 (inserted by s 9); and para 11 of the Schedule to HEFSA23. Para 9 of that Schedule comes into force in July 2023, the remaining sections in due course by SI.

4.14 HEFSA23 amends the functions of OfS. This section of the text will be updated as the Act is brought into force. The government has announced the appointment of the first Director for Freedom of Speech and Academic Freedom (s 10 HEFSA23, not yet in force) to take up his office later in 2023.

10.13 Chinnasamy v University of Edinburgh [2023] UKET 4103778/2022 is another ‘in person’ case where U’s application to strike out was dismissed. In Tufail v The Alan Turing Institute (England and Wales: Breach of Contract) [2022] UKET 2203396/2021, ATI successfully applied to strike out T’s claims – T was not legally represented.

11.35 The saga of the Oxford EJRA continues with Field-Johnson, Flyvbjerg, Candelas and Snidal v The Chancellor, Masters and Scholars of the University of Oxford [2023] UKET 3301882/2020, 3304225/2020, 3300563/2021, 3312857/2021, 3323585/2021 and 3323608/2021, 13 days of hearings resulting in a 68 pp, 198 paragraph ruling that the EJRA is not a proportionate means of meeting a legitimate aim in relation to any of the claimants.

11.38 S 1 (A1) (11) and (12) HEFSA23 regulate the use of NDAs in certain circumstances. This section is not yet in force.

13 As noted in the Update to paragraph 1.04, the legal position as to ‘freedom of speech within the law’ in England (and to some extent in the rest of GB but not NI) has now changed significantly with the enactment of HEFSA23 in May 2023. As the Act is brought into force, subsequent Updates will amend the text as necessary. As before there is no definition of what is regarded as ‘within the law’ – see para 13.12.

The Explanatory Notes to HEFSA23 indicate that it includes a range of measures aimed at strengthening previous legislation on freedom of speech and academic freedom in higher education, including:

Strengthening the duties regarding freedom of speech previously imposed by s 43 E2A86 on higher education providers registered with OfS.
Creating a new duty for registered higher education providers to promote the importance of lawful freedom of speech and academic freedom in higher education.
Creating duties regarding freedom of speech for constituent institutions of registered higher education providers.
Creating new duties regarding freedom of speech for students’ unions at approved (fee cap) providers.
Creating a new statutory tort for breach of specified freedom of speech duties, enabling individuals who have suffered loss to seek legal redress for loss they have suffered as a result of breach of specified duties.
Creating a new complaints scheme to be operated by OfS, allowing individuals to seek compensation for loss they have suffered as a result of breach of specified duties. Enhancing academic freedom protections by extending coverage to include recruitment and promotion.
Banning the use of non-disclosure agreements (NDAs) by registered higher education providers to silence victims of sexual misconduct, and other forms of bullying or harassment in higher education settings.
Introducing new registration conditions for registered higher education providers on freedom of speech and academic freedom.
Introducing regulation by OfS of students’ unions at approved (fee cap) providers in relation to their compliance with the new duties.
Introducing transparency measures concerning overseas funding as regards the risk to freedom of speech and academic freedom.
Creating a new role within OfS of a Director for Freedom of Speech and Academic Freedom, with a remit to champion freedom of speech and academic freedom on campus, and responsibility for investigations of infringements of freedom of speech duties in higher education which may result in sanctions or individual redress via the new complaints scheme.

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TLHE UPDATE NOTES (JAN 2024)

1.04 The Lifelong Learning (Higher Education Fee Limits) Act 2023 makes a number of changes to HERA 17 ss 10, 11, 31, 85(1), 119 (3) and Sched 2 para 5. Not all sections are in force as at January 2024.

1.18 A merger has been announced between City, University of London and St George’s, University of London.

1.25 14 English universities and one Welsh university now form the Cathedrals Group of Universities, a registered charity ‘United in Common Purpose.’ The English universities are Birmingham Newman, Bishop Grosseteste, Canterbury Christ Church, Leeds Trinity, Liverpool Hope, Plymouth Marjon, St Mary’s Twickenham, Chester, Chichester, Cumbria, Gloucestershire, Roehampton, Winchester, and York St John. The Group has been critical of the Office for Students for its ‘mode of operation, excessive calls for data and limiting definitions of quality.’ www.cathedralsgroup.ac.uk.

1.26 Newman University is now Birmingham Newman University. Writtle University College HEC has been dissolved and merged into Anglia Ruskin University: The Writtle College HEC (Dissolution) Order 2023, SI 2023/1365. ARU now has campuses in Cambridge, Chelmsford, Peterborough, Writtle and London.

1.31 The Cathedrals Group of Universities, together with 14 English universities (see para 1.25) includes the University of Wales Trinity Saint David.

1.32 Wrexham Glyndŵr University is now Wrexham University/Prifysgol Wrecsam.

1.42 n. 37 New College of the Humanities is now Northeastern University London.

4.40 HESA updates are available at www.hesa.ac.uk. HESA stopped publishing UKPIs in 2022.

4.45 S. 31 is amended by the Lifelong Learning (Higher Education Fees Limits) Act 2023.

11.13 n. 78 add: In Piepenbrock v London School of Economics and Political Science (England and Wales: Disability Discrimination) [2023] UKET 2200239/2015, P was unsuccessful in his claims of unfair dismissal, discrimination because of something arising in consequence of disability, and victimisation. The case, which is one of several to have reached the tribunals and courts since 2015, heard from February -May 2022 involved 39 days of hearings, and a judgment of 163 pages, 761 paragraphs.

11.24 add (xxviii) In Olyazadeh v Newcastle University (England and Wales: Breach of Contract) [2023] UKET 2500668/2023, O was a litigant in person, U represented by counsel. Having withdrawn some complaints, she unsuccessfully claimed unfair dismissal and notice pay as the complaints were out of time. U’s application to strike out her remaining claims of sex discrimination and suffering detriment after making a protected act was dismissed, but a deposit order was made. The ET stressed the importance of O seeking legal advice.

11.24 add (xxix) In Sheikholeslami v University of Edinburgh (Reasonable adjustments: Sex Discrimination: Victimisation Discrimination) [2018] UKEAT 0014_17_0510), a case arising from S’s dismissal in 2012 when her work permit was due to expire, and in which QCs appeared on both sides, the EAT held that the ET had erred in its approach to both the reasonable adjustment and discrimination arising from disability claims, and other errors by the ET which failed to deal with a number of aspects of S’s claims of unlawful sex discrimination and victimisation. The case was remitted. In 2021, S was awarded £50,000 by the ET according to media reports.

11.24 add (xxx) Pipe v Coventry University HEC (Disability Discrimination – Age Discrimination) [2023] UKEAT 73, both parties represented in the EAT by counsel, was concerned with the application of U’s ‘Framework for progression’ i.e, promotion procedure. P had made three unsuccessful applications for promotion. P claimed the Framework gave rise to indirect disability discrimination, and that he suffered unfavourable treatment due to something arising in consequence of his disability (ADHD and sleep disorder), in thar he was unable to meet the Framework standards for progression in terms of attaining a PhD. The ET had rejected his claims; the EAT dismissed the appeal except in relation to the ET’s failure to address indirect disability and age discrimination claims in 2020. The claims were remitted to the ET. This is a complex judgment which discusses all relevant authority and worthy of study by HR departments.

11.24 add (xxxi) In Wickens-Drazilova v University of Dundee (Scotland: Disability Discrimination) [2023] UKET 4100892/2022, a case involving 19 days of hearings, and a judgment of 183 pages of 594 paragraphs, W-D claimed some £200,000 for constructive unfair dismissal, discrimination on grounds of sex, race and disability. Both parties were represented by advocates. The ET held that W-D was not dismissed, and that it had no jurisdiction to consider the claims under EqA10, except in relation to a grievance (breach of ss26 and 40 EqA10) which did not succeed. The case is complex and worthy of study by HR departments.

11.29 add (xv) In Crowley v Edge Hill University (England and Wales: Disability Discrimination) [2023] UKET 2401143/2023, C was a litigant in person, U represented by counsel. The ET held that she was not disabled for the purposes of EQA10, but permitted her unfair dismissal claim to proceed.

11.29 add (xvi) In McAuley v Canterbury Christ Church University (England and Wales: Disability Discrimination) [2023] UKET 2300946/2021, M successfully claimed unfair dismissal, and unfavourable treatment because of something arising in consequence of disability. The dismissal of M was such unfavourable treatment. The case arose out of a restructuring process, carrying out a redundancy procedure. M was represented by counsel.

14.31 There is litigation in a number of jurisdictions as to whether AI can generate and own patents, and proposals for changes in legislation required to address the rise of AI. In Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49, the Supreme Court held that an AI-generated invention was not produced by a ‘person’ for the purposes of the Patents Act 1977.

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TLHE UPDATE NOTES (FEB 2024)

10.12 As noted in the text, and in all previous editions, ETs were expected by Parliament to provide a faster, cheaper and less technical approach than the courts to resolving individual disputes. Early cases reported in higher education were in this sense relatively uncontroversial. Contrast that intention with a number of complex cases in higher education now reported in Chapters 10 and 11 and their respective Updates, dealing with questions of unfair dismissal, redundancy and different aspects of discrimination, for example the cases reported in para 11.32.

10.72 White et al v (1) UAL Short Courses Limited (2) University of the Arts London [2024] UKET 2206290/2020 was a preliminary hearing in respect of 40 claimants (six of whom were identified as ‘Lead Claimants’) who alleged unfair dismissal, entitlement to a redundancy payment, breach of contract (notice money), unlawful deductions from wages, and unpaid holiday pay when their work for UALSC ceased in 2020 due to COVID restrictions. The employer was UAL Short Courses Limited, a wholly-owned commercial non-charitable subsidiary of UAL. After detailed discussion of the law relating to part-time workers the ET held that continuous service was not established (s. 135 EmpRA96). The claimants were employed by UALSC Limited on limited-term short course non-award-bearing teaching contracts. Whether any employment protection rights arose in relation to other employment by UAL was not addressed.

11.32 Phoenix v The Open University [2024] UKET 33222700/2021 and 332384/2021, was an ET case, with 23 days of hearings and deliberations, a decision of 718 paragraphs over 155 pages, 5552 pages of evidence and a witness statement bundle of 351 pages, with both parties represented by KCs. The decision, which involved a forensic examination of emails and other exchanges between P, her colleagues and others, was largely in P’s favour (5 out of 9 complaints were upheld) and it is understood that U will not appeal. P was found to have been subject to direct discrimination and harassment because of her stated gender critical beliefs, to have been constructively unfairly dismissed (resigning because of U’s failure to support and protect her from discrimination and harassment), wrongfully dismissed, and victimised post-employment. The ET decision has attracted considerable media coverage, as P was not protected from so-called ‘social media mobbing/pile-ons’ by fellow U employees/managers.

The ET analysed all relevant legislation and caselaw, first on the extension of time limits for bringing claims of direct discrimination and harassment, and secondly the law relating to philosophical beliefs, In particular the decision of the EAT in Forstater v CGD Europe [2022] ICR 1, which (overturning a decision of an ET) held that holding gender-critical beliefs (as in P’s case) fell within s.10(2) EqA10. The beliefs satisfied the five criteria set out in para 24 of the judgment in Grainger plc v Nicholson [2010] ICR 360. The compensation due to P is to be decided at a remedies hearing.

Similarly, another case about discrimination on grounds of philosophical belief, this time for expressing anti-Zionist views in 2021, resulted in successful claims of discrimination, unfair dismissal and wrongful dismissal: Miller v University of Bristol [2024] UKET 1400780/2022. The ET held that M’s anti-Zionist beliefs qualified as a philosophical belief and as a protected characteristic pursuant to s. 10 EqA10. M was dismissed in 2022 after an unsuccessful appeal. M’s compensation for unfair dismissal (basic and compensatory awards) was reduced by 50% on the Polkey/Chagger basis that his dismissal was caused or contributed to by his own actions. The tribunal also held that there was a 30% chance that had M still been employed, U would have dismissed him fairly two months after comments he made on social media in August 2023. As in the Phoenix case, M’s belief satisfied the five criteria set out in para 24 of the judgment in Grainger plc v Nicholson [2010] ICR 360. In M’s case, he was not protected from external pressures on U. There is no information at present (February 2024) on any appeal, but U is ‘disappointed with [the ET] findings’ (University of Bristol website, 5 February 2024.]

14.35 In IU Internationale Hochschule GmbH v Office de l’Union européenne pour la propriété intellectuelle (EUIPO) (EU Trade Mark- Judgment) [2024] EUECJ T-188/23 (French text) the Tribunal dismissed an appeal against a decision of the EUIPO (R 1951/2022-1) to refuse registration of a trade mark ‘IU International University of Applied Sciences’ because ‘IU’ is too descriptive of the institution’s services. The institution continues to use the title.

14.54 In Innovate Pharmaceuticals Ltd v University of Portsmouth Higher Education Corporation [2024] EWHC 35 (TCC), IP was awarded £1m (limited to that figure by an exclusion clause in the Agreement between the parties). In summary, the dispute resulted from delay following the withdrawal of an academic paper, which had erroneously reported results of a research programme into a drug developed by IP, and a consequent need to carry out a fresh programme. U had also found research misconduct by the principal author of the retracted paper, although both U’s Disciplinary Panel and the court held that he was not dishonest. The effect of the delay on the value of IP’s patent was stated to be in excess of £100m. The court held that … ‘U did not use all reasonable skill and care to ensure the accuracy of the work performed (which included the work of preparing the paper) or in the giving of information (including the information given in the paper.’ In this case, the terms of the Research Agreement between IP and U were analysed in detail by the court. The decision should be read by any HEI which is considering a similar Agreement, in particular the validity of exclusion clauses, and the way in which the HEI as contracting party exercises supervision over the performance of such Agreements.

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