No breach of contract simply because teaching is delivered other than in the way timetabled

Mills & Reeve has recently acted on behalf of a higher education institution in its successful defence of a claim brought against it by a former student for breach of contract arising from cancelled lectures and seminars due to industrial action.

Background Facts

The claimant was a student taking a one-year full-time post-graduate degree course at our university client.  This was at the time of an ongoing dispute at national level in relation to both pensions and pay at universities for academic staff.  Various strike days were arranged, which were attended by a number of the university’s employees.  This resulted in some of the claimant’s lectures and seminars being disrupted.  The claimant subsequently withdrew from his course citing the disruption caused by the industrial action as the reason why.  He made a complaint under the university’s complaints policy, which was not upheld.  He then issued a claim in the county court (without first escalating his complaint to the OIA).

The Claimant’s Claim

In its defence, the university noted that, in common with other higher education institutions, the emphasis was on independent and self-directed study, and particularly so in relation to post-graduate courses like the claimant’s.

Defence

In its defence, the university noted that, in common with other higher education institutions, the emphasis was on independent and self-directed study, and particularly so in relation to post-graduate courses like the claimant’s.

The university maintained that the industrial action could not be relied upon by the claimant as causing a breach of contract because:

1. The claimant did not have a contractual right to all of the timetabled teaching for his course being provided on the times and dates scheduled or at all;
2. The industrial action was a matter outside of the university’s control and it took all reasonable and proportionate steps to mitigate the impact it had on students including the claimant; and
3. The industrial action did not have any, or any significant, effect on the claimant or on the university’s other students generally.

As such, there was no breach of contract, let alone a fundamental breach entitling the claimant to treat it at an end.

Judgment

Factually, the judge accepted that the mitigations that the university said it had applied for each of the affected lectures were put in place and that the disruption as a result of the protests was noisy but limited and not campus wide.  He then went on to apply the law to those facts.
 
The judge noted that the student contract contained a term (that would have been implied by consumer laws in any event) that the university would deliver the course with reasonable skill and care.  The question then was whether the disruption, including the cancelled classes, caused by the industrial action amount to a breach of that term.  In the judge’s view it did not.  The following observations were made:

1. The university’s performance of the contract was not something different to what was identified in the terms and conditions.  It could not be said that the only way to provide the contract was in exact accordance with classes timetabled, or the only way to act with reasonable skill and care was to somehow prevent the strikes from happening.
2. The very small number of classes that had been cancelled as a result of the strikes were rearranged or the material provided or covered in other ways and/or at other times.
3. The claimant was not able to explain how the university’s performance was fundamentally different to that which was offered.

On that basis, whilst it was accepted that the strike periods may have been inconvenient and caused some disturbance, that did not form the basis for a claim for breach of contract. In those circumstances the claim was dismissed.
 
The claimant has applied for permission to appeal.

Comment

It is not uncommon for higher education institutions to find themselves in situations where they are unable to deliver a course as originally timetabled, whether that is due to industrial action, a global pandemic, or other circumstances that are outside of their control.  Whilst every case will be decided on its own facts, this case demonstrates that there can be scope for defending claims for breach of contract alleging that teaching was not delivered as timetabled.  Institutions will also want to consider other potentially relevant frameworks such as consumer law and the OIA scheme.

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