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Striking academics – a breach of the student contract?

The current university pay dispute award is becoming more serious and threatens to disrupt this summer’s exams and graduation ceremonies.

A recent UCU headline: “University graduations at risk as union gives green light to marking boycott” demonstrates that the current dispute over the pay award is becoming far more serious and threatens to disrupt this summer’s exams and graduation ceremonies.

Universities should therefore be making contingency plans in order to minimise the impact on students – it is possible that students will (at the very least) complain or (at the very worst), sue for breach of contract and make claims for associated damages.  Of particular concern will be those students who are expecting to graduate and hope to move on with their careers whether into further courses of study or into the workplace as a result of their performance in this summer’s examinations.

We have already seen that a number of institutions have adopted a policy of making deductions from pay – the question for many will be whether they have the stomach for a longer fight.

Students

If the current industrial action by academic staff continues into the exams period, as threatened, students will be directly and adversely affected.  It is not just the marking of completed scripts that universities need to prepare for. The whole process involves months of preparation, from setting assignments (which are usually earlier than the exam period), writing exam papers; liaising with external examiners; invigilation; dealing with mitigating circumstances; marking scripts; attending examination boards and of course preparing for and attending the degree awarding ceremonies themselves.

The Student Contract

So what rights do students have against the University if their papers are not marked or their marks are delayed?

The relationship between a university and a student (which forms the basis for any complaint) has always been a contractual one, but it is important to remember that the student is also a consumer, whether we like it or not.  Students are substantively paying three times as much for the privilege of walking through the door as was asked of their predecessors not too long ago.  They have a very different view of what to expect.  Students are, legally, consumers, with all the attendant legal rights of a consumer.  Furthermore, they have been told they are consumers:

1.  by the Browne Report which clearly stated they are consumers and

2.  the government via the Department of Business, Innovation & Skills

It is against this backdrop that universities are facing the prospect of possibly being unable to provide the service for which they have contracted with the student.

The basis for the contract will be found in more than one document – essentially any document that is produced by the university in relation to the course that the student has enrolled on will form part of that contract, some being given more weight than others but all being construed in favour of the student as the “weaker” party.  In addition the university is under an implied duty to use “reasonable skill and care”.  In the normal course of events students expect to sit examinations in accordance with the timetable set out in course documentation, with end of year exams taking place (for the most part) during the early summer months, and results being published well in advance of a new academic year, currently the 1st August.

A breach of this contract can give rise to a legitimate claim, provided of course that the student can prove that they have suffered a loss as a direct result of the breach and that the student has taken steps to mitigate the extent of any loss alleged to have been suffered.  The avenues open to the student to launch their claim can include:

  • a County Court action for a breach of contract – where the claimed damages are below the County Court thresholds;
  • a High Court action for a breach of contract – where the claimed damages are above the County Court threshold;
  • a complaint to the Office of the Independent Adjudicator (“the OIA”)

The County Court generally handles claims for less than £50,000, with those over that threshold being dealt with by the High Court.   In certain circumstances, a claim over £25,000 can be launched in the High Court if by reason of: the complexity of the facts, legal issues, remedies or procedures involved, and/or the importance of the outcome of the claim to the public in general; the claimant believes that the claim ought to be dealt with by a High Court judge .

In addition it is possible, although not quite so probable that a student could launch a judicial review application for example based on the decision not to employ substitute lecturers or even an action in negligence by claiming that the university has failed properly to discharge its duty of care to its student body.

The University

As mentioned in the introduction, universities should be making contingency planes to deal with the eventuality of strike action affecting the examination period.  Suggested actions to deal with the exam period would include:

  • Good communication with all stakeholders – at the very least - make sure students are properly and fully informed.
  • Consider employing a team of ‘Ambassadors’ who students can turn to for information and consider also creating a special web page where all relevant information is kept and properly updated.
  • In the first instance prepare, and keep up to date, a proper record of which staff are likely to take part in the escalated strike action. This is essential in identifying the size of the problem and will assist in deciding the most appropriate line of action.
  • Written confirmation should be sought from those staff who intend to strike.
  • Where staff indicate that exam papers will not be prepared, ensure that you have alternate and appropriately qualified academic staff to set the exam papers.
  • Ensuring that proper management processes are followed to track the progress of the preparation of examination papers.  Set clear deadlines for submission and keep track.  Ensure that the university is fully aware of missed deadlines so that appropriate action can be taken as soon as any potential problems are identified.
  • Informing affected external examiners and at the same checking that they themselves are not taking strike action which will affect your institution and making alternative arrangements as necessary.
  • Ensuring that exam timetables are being prepared – do not leave this to chance.  Identify appropriate members of staff to undertake this task, from room booking to preparing the timetable itself.
  • Ensuring that all examinations have sufficient numbers of invigilators, create a bank of additional invigilators who can step in on no notice to fill gaps.
  • Liaison with external professional accrediting bodies where appropriate.  Agree at the earliest stage any guidelines or requirements and make sure your institution follows them so that your students fulfil any required professional body standards.
  • Consider employing properly qualified substitute academic markers.  Liaise with neighbouring institutions if necessary.  At all times the university academic standards must be maintained to ensure the appropriate level
    of expertise in the assessment process.
  • Prepare for students and substitute staff having to cross potentially hostile picket lines.
  • Ensuring that any necessary amendments to academic processes are approved in accordance with the Academic Regulations.

Suggested actions following the exam period would include:

  • Ensuring that an appropriate number of properly qualified internal markers are in place and that they mark in accordance with the Academic Regulations.  If the regulations require double blind marking – then unless you amend the regulations, double blind marking must take place.
  • Ensuring that mitigating circumstances boards are properly called and constituted in accordance with the Academic Regulations including having the requisite quorum.
  • Ensuring Examination and Award Boards are properly called and constituted in accordance with the Academic Regulations including having the requisite quorum.

What happens if marks are delayed beyond the start of the next academic year?

There is a clear divide here between students who will be returning to progress into the next academic year of study and those who are expecting to graduate at the end of the current academic year.

Priority, if it has to be given, should be given to those students expecting to graduate.  All efforts must be made to ensure they graduate before the start of the next academic year.  The potential losses for these students are likely to be larger than ‘returners’ and could include: loss of opportunity (employers or their next academic institution may not wait); as well as direct losses incurred in delaying their next life step by a period of time – and in some cases an entire calendar year.  In addition to the more obvious loss of perhaps a job or an academic place, will be associated costs such as transport (particularly for overseas students); accommodation; general living expenses; losing grant funding or bursaries; loss of placements and possibly claims for distress

The Degree Awarding Ceremony needs to be properly considered and contingency plans put in place if it is likely to be affected by the threatened strike action.  If it is proposed to postpone the ceremony, as much advance notification as possible should be given to all students.  Family members and friends may be travelling specifically for the ceremony (including from overseas) and costs associated with the ceremony may well form part of any subsequent claim.  Students must be given the fullest opportunity to mitigate their losses as soon as possible.

If it is not possible to postpone the ceremony, consider whether renaming it and treating it as a celebration of study so far.  Students can then be given their degree certificates at a later stage and/or be invited to subsequent ceremonies once their final degree classification is learned.

Any contractual arrangements surrounding the ceremony itself should be considered for example: Venue: does it need to be moved (different venue or a different date); Caterers: do they need to be cancelled or simply postponed; Companies providing robes, will they be available on an alternative date; are the Honorary Degree ceremonies being run at the same time, will the Honorary Graduands be available; Associated gift ware vendors – again what does the contract say about their rights?

For returning students, where it has not been possible to award year end grades, consideration should be given to allowing them to continue into their next academic year on a conditional basis pending the confirmation of their results.  This is likely to require an amendment to the section of the Academic Regulations relating to progression.  It may also require special exams to be set so that any failures can be picked up easily and quickly and in a way that causes the minimum of disruption to their ongoing studies.

The university policy on mitigating circumstances is likely to need amending.  It is important to ensure that any amendments are approved in accordance with the Academic Regulations and is in place well in advance of subsequent examination periods.  The amendments should refer specifically to disruption caused by the strike.

At all times, take into consideration that any change to the original contract that the student signed up to, could give rise to an actionable claim.  Accordingly, any changes that are made must be in the student’s favour – provided always that the overall academic standards of the institution, or those required by external professional bodies are not compromised.

Finally, should the university set aside a contingency budget and should it consider making ex gratia payments to students who are adversely affected?  Even if the university does all it reasonably can to ensure that the students are not adversely affected, win or lose, any claims will be costly to defend – and not just in terms of external legal advice.  Making such payments may discourage students from making claims although it won’t protect the university if they do.  Any payments would be taken into account by a court when calculating payments for loss and damage.