University liability for industrial action: facts, law and process.

In February and March this year, academic staff who were members of the University and College Union (UCU) went on strike across 61 UK higher education institutions. The dispute concerns changes to a particular pension scheme and is currently on hold pending a review and further discussion between UCU and Universities UK (UUK) which is representing the employers.

Students have been clearly concerned at the impact of the industrial action on their studies and questions are being raised about what redress is available to them. There is the possibility of 'group litigation'. However, it must be borne in mind that each case must be determined on its own facts and circumstances. The impact will have varied across departments affected by the industrial action and across universities in how they responded to mitigate any disadvantage to their students. Terms and conditions across institutions will vary. Some students will be coming up for examinations and assessments and varying arrangements will have been made to accommodate the disruption and provision made to consider mitigating circumstances.

As well as these factual questions, there are also legal questions about whether these events were outside the control of the institutions concerned. 

Guidance has been issued by the new regulator for the higher education sector the Office for Students (OfS) which encourages students to contact their respective universities and explains that students  will be able to pursue their concerns under their institutions' internal complaints procedures. Thereafter, students, if they remain dissatisfied, may make a complaint to the Office of the Independent Adjudicator for Higher Education (OIA).

The OIA has recently published its annual report for 2017 in which it says:

"Our purpose is to advance education through the independent, impartial and transparent review of unresolved complaints."

The Chief Executive goes on to say:

"Fairness for students is at the heart of everything we do."

The reported statistics show that the OIA closed 1640 complaints in 2017 and that 75% of those cases were concluded in 6 months. The OIA made 200 recommendations for compensation which totalled £583,321.29.

In its guidance on remedies, the OIA confirms that financial compensation is recommended usually only where practical remedies are unavailable, inappropriate or do not sufficiently compensate the student. It goes on to confirm that it will take into account steps taken to minimise any loss and that students must prove actual loss. The OIA guidance also says that where it recommends a refund of tuition fees, then it would recommend that the provider returns the money to its source (for example the Student Loans Company).

In many ways the OIA is a free alternative dispute resolution (ADR) mechanism designed specifically for dealing with unresolved student complaints. This was commented on in a recent High Court judgment in a judicial review claim and noted in the OIA's annual report:

"Where there is an available ADR procedure - especially where it is provided by Parliament - the interests of the public body and citizen in having a more attractive procedure and, very importantly, the public interest in resolving claims outside the court system where possible, will be of such weight that the balance of interests will be in favour of giving a proper opportunity for the dispute to be resolved, in whole or part, by the alternative procedure."

R (Zahid)-v-University of Manchester, R (Rafique-Aldawery) -v-St George's University of London, R (Sivasubramanyam) -v- University of Leicester [2017] EWHC 188

The OIA also issued guidance specifically about the strike action in March and confirmed that it would consider the consequences for individual students and, most importantly, what has been done by institutions to put things right.

 

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