Legal considerations with special HE aspects

Public or private?

It remains a matter of dispute whether universities are 'public' bodies or 'private' bodies. The Freedom of Information Act treats them as public bodies for the purpose of requiring their compliance with freedom of information legislation. But in employment cases they are normally treated as 'private' employers. The development of the law in the area of student contracts and the adoption of student contracts with express terms by an increasing number of HEIs is likely to move litigation by students from the traditional area of applications for judicial review to private law claims.

The nature of autonomy

The understanding of university autonomy in other jurisdictions may not be the same as in the UK. There is considerable variation throughout the EU in the relationship between universities and the State. Helpful websites are:

EUA website (European Universities Association) - http://www.eua.be/

EIAE (European Association for International Education) - http://www.eaie.nl/

Academic freedom and freedom of speech

Academics and students can be highly articulate and not hesitate to make use of the numerous avenues by which news gets about on the campus. Everyone, staff and student, has an email address on the university's system. They will send emails round to lists (sometimes in breach of the university's code of conduct for the use of mailing lists). They will put up posters and march about with placards ( like the student who paced up and down for months in front of the administrative offices of one London university with a banner proclaiming his grievance against it ). They publish tirades in student newspapers. They gossip.

Two main provisions give statutory protection to academic freedom of speech.

The first, in the Education(No 2) Act 1986 s.43, protects the right of any person speaking on a university campus to say anything within the law:

This includes persons who are not members, students or employees of the university but merely happen to be visiting it to give a lecture or take part in a debate.

The premises of student unions are included even if they are not technically part of the university premises.

The second protection is to be found in the Education Reform Act 1988 s.202. This was designed to protects only academic staff in the old universities and it was intended to ensure that when they lost the tenure they had enjoyed before 1987, they could not be dismissed for uttering unpopular but lawful opinions. The inclusion of senior administrators under the Model Statute presumably extends this protection to them, though it is not clear whether the protection covers speaking unpopular opinions about the way the university is run.

Intellectual property

Universities, like other employers, normally own the copyright of their employees' work. Academic employees have until recently, generally enjoyed and informal permission to keep the royalties from books they write. This situation is now changing, as intellectual property in patentable discoveries becomes more valuable.

Universities increasingly require students, as a condition of their enrolment or registration or matriculation, to give an undertaking that they will hand over the intellectual property in their work to the university. For a research student this can involve a significant sacrifice of future freedom to conduct research or of future earnings even if it is only the university which wishes to take a stake or to take control.

It can especially problematic when the research is funded by a commercial sponsor, which may be using the university as an arm of its own 'research and development' work and wish to prevent publication of results. A student could thus be prevented from giving papers at conferences or completing a thesis (whose deposit with the university or viva voce examination may formally constitute publication).

Universities must make this requirement clear to students and should be open to the possibility that it will be found to be unlawful as an unfair contract term if it is challenged.

Good practice is defined by the QAA:

' The institution's policies, practices and requirements with respect to intellectual property rights (including arrangements, where relevant, with external commercial or industrial organisations with their own intellectual property rights arrangements) will need to be clearly expressed to applicants and any relevant third party.'
http://www.qaa.ac.uk/academicinfrastructure/codeOfPractice/section1/default.asp

The problem of academic judgement

Many student complaints contain an element of challenge to an 'academic judgement'

If the complaint also involves criticism of procedural flaws the problem is to determine whether it is likely to have affected the outcome.

The choice of an examiner for a PhD.

Not keeping examiners' notes. (of the old exasperated sort)

Bursaries and discretionary funding issues

Employee disputes can also involve matters of academic judgement, especially where a promotion is denied.

Criteria for upgrading of non-academic staff present a particular difficulty, since they may include professional judgements.

Conditions affecting student disputes

Membership and contract

In Oxford and Cambridge, undergraduates are admitted by the colleges in the first instance and the colleges then present them to the universities for 'matriculation'. Graduate students are admitted by departments and faculties on behalf of the university but they are always then accepted by a college, which presents them for matriculation. Matriculation confers membership for life. Oxford and Cambridge students therefore have a two-fold membership and contracts with both their colleges and the university. This can result in confusion if they have a complaint. In Cambridge they may have some difficulty and experience some delay in getting a complaint heard by the appropriate authority and not all colleges have published complaints and appeals procedures.

Although it is now accepted that there is a contract between student and university under which the university must provide the course as advertised and to a reasonable standard there remains a requirement that the student undertake to obey the rules of the institution and can be disciplined. This is based on the membership principle in the old and ancient universities. It is not clear what is the basis for disciplining a student in the new universities.

The introduction of student contracts promises to become a minefield of potential disputes. See discussion of this issue at http://armed.ilrt.bris.ac.uk/

Plagiarism

Plagiarism is essentially theft. But its old definition and character has been challenged by the availability of material on the internet.

A university should have rules which make it clear to students what will be deemed to constitute plagiarism. This is particularly important when students make the transition from the world of the undergraduate examination, in which no footnotes or detailed attributions are expected, to the postgraduate dissertation, where both are required.

Punishments for plagiarism sometimes include not awarding the degree ( a disciplinary sanction) and sometimes include awarding a degree of a lower class ( an academic judgement )

An able student who had obtained a first class degree as an undergraduate did an MBA. He turned in good performances in all his papers. The university had no rules about plagiarism. After the examination had been completed and he had been awarded the degree suspicions were expressed about plagiarism in one of the papers. At most this had consisted in a failure to include sufficiently detailed footnotes. He was subjected to the university's disciplinary procedure and stripped of his degree. His appeal failed.

Avenues of recourse for students

The Higher Education Act 2004 takes away the jurisdiction of a university's Visitor in student complaints, and probably in student appeals too (the wording of s.12 is "complaint about an act or omission of a qualifying institution").

Instead, once the internal procedures are exhausted, students are to take their complaints to the Office of the Independent Adjudicator. http://www.oia.org.uk

This levels the playing-field. Previously students at old universities had had recourse to the Visitor at no cost to themselves, but where there was a Visitor they were excluded from the courts. Students at new universities had been able to go to court because their universities did not have Visitors but they did not have access to the cost-free option of a petition to the Visitor. Students at Oxford and Cambridge could go to court if their complaint was against either university ( for they do not have Visitors ) but not if it was against their college ( for all the colleges have individual Visitors). Now all students will be able to go to the OIA.

The problems faced by students doing a course at one institution for a degree which is awarded by another are catered for by the OIA, and also the problems faced by individuals who were formerly students but because of delay in dealing with their complaints have ceased to be students of the instituion in question. A complaint 'qualifies' if it is made by a " student or former student at another institution (whether or not a qualifying institution) undertaking a course of study, or programme of research, leading to the grant of one of the qualifying institution's awards."

On the other hand a complaint does not 'qualify' if 'it relates to matters of academic judgment'.

Conditions affecting staff disputes

There has been a significant shift in universities from a culture of collegiality to a culture of line-management which has particularly affected academic staff.

Old-fashioned tenure has been lost by all except those whose contract dates from 1987 or earlier. Training of senior academic line-managers in managerial responsibilities and good practice has been patchy, partly because senior academics tend to be resistant to complying with training requirements.

Academic line-managers acting as heads of department commonly also have line-management responsibilities for other categories of staff, such as secretaries and laboratory assistants and cleaners. The lack of training and understanding of good practice can also adversely affect their working conditions.

Staff at Oxford and Cambridge and the 'old' universities are subject to the Model Statute which entitles them to have any dispute (discipline or grievance or proposed redundancy) dealt with under special procedures.

The original purpose of these procedures, which comply with s.202 of the Education Reform Act 1988, was to protect academic freedom to 'question and test received wisdom' when old-fashioned academic tenure was removed by the Act for all staff appointed or promoted after 1987.

In the 'old' universities academic staff and usually some of the senior administrators are designated as employees to whom these rules apply. There is no consistency and the protection has been extended to many kinds of non-academic staff. It has become a badge of seniority for administrative and managerial staff.

New rules for disputes: the Higher Education Act 2004

The Higher Education Act 2004 s.46 has changed the rules governing dispute-resolution for staff.

Avenues of recourse for staff

The Higher Education Act 2004 made radical changes to the options open to employees. The relevant section ( s.46) is now in force.. S.206 of the Education Reform Act 1988 had excluded the jurisdiction of visitors in employment disputes affecting the categories of staff to whom the Model Statute applies. This exclusion is now extended to all members of staff and to a wider range of disputes, in fact anything "in respect of which proceedings could be brought before any court or tribunal". If there is an argument about what this covers the presumption is to be that the Visitor does not have jurisdiction.

The Model Statute

1. The old Model Statute

The Model Statute was adopted by all then universities in the early 1990s as was required under s.202 of the Education Reform Act 1988.

Its original purpose was to provide adequate employment protections for academic staff when tenure was removed for those promoted or entering into new contracts after 1987.

To that end, it enshrined the principles of s.202:

to ensure that members of staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges;
to enable the University to provide education, promote learning and engage in research efficiently and economically; and to apply the principles of justice and fairness.

It had chapters covering grievance procedures and dismissals by reason of redundancy and ill-health, as well as dismissals resulting from disciplinary procedures

Each university made minor adjustments for itself, and the resulting changes to its statutes received Privy Council approval.

• Universities did not all apply the statute to the same groups of staff.
• The statutes must apply to 'academic staff' but the classification of staff as 'academic' is not consistent.
• Some universities included academic-related staff, others did not.
• Some specifically excluded research or contract research staff.

A weakness of the Model Statute was that it was left to each university to enact ordinances or regulations which would set out the Statute's procedures in detail. This was done very patchily, so that universities sometimes did very little and any invocation of the procedures involved considerable delays while workable procedures were decided upon.

2. The new Model Statute

In 2001 a committee was set up to look at the current model statutes and this resulted in a proposed new model statute which has received Privy Council approval.

Amendments to Model Statutes can only be made by application to the Privy Council by individual chartered institutions.

It is not necessary for a university to change its existing version of the Model Statute.

Remaining problems

The Model Statute created to deal with the fear that if tenure was ended academics would be sacked without the protections of a fair hearing.

But remaining problems include:

• The creation of a two-tier disciplinary and grievance processes in institutions, with a line between senior and junior administrators
• The fact that academics on permanent contracts turn out to be very difficult to sack.
• Failure to create procedural requirements which apply to both 'old' ( chartered, civil corporation ) universities and 'new' universities created by the Further and Higher Education Act 1992
• Lack of consistency about the categories of university employee to which the Model Statute applies
• A continuing lack of detailed requirements about procedural good practice
• The loss of the right to appeal to an external party or a committee having an external member
• Lack of consistency about the treatment of 'academic', research or other staff on fixed-term contracts in potential redundancy situations
• It is possible for a university to make changes in the use of fixed-term contracts and to transfer staff on fixed-term contracts to permanent contracts without amending its version of the Model Statute.
• It is possible for it to do so by amending its version of the Model Statute.
• It is possible for it to make no changes except the minimum required by current legislation.
• The need for a redundancy committee is removed.
• Changes to the mechanisms for creating redundancies weaken the requirement to consider alternative strategies and to take a pan-organisational view
• Financial penalties are introduced for disciplinary cases.

---

The IDR project does not set out to give legal advice and we appreciate that Higher Education Institutions, trades unions, student associations and other stakeholders have their own legal advisers. On some of the topical issues which may give rise to disputes, the legal issues can be contentious and advice may differ. The content of this section of the website is not intended to be legal advice for any institution or individual but to give the flavour of current issues. What is said here does not represent a collective view of the IDR Steering Group.

• Contact • Site Map • Disclaimer •