With Smita Jamdar, Partner and Head of Education - 11th September 2020, 09:30 - 10:00am
Rarely has a start of term brought as many unknowns and challenges as this one is likely to. From implementing and enforcing Covid-19 controls, to dealing with the consequences of too many or too few students, and the ongoing uncertainty around international students, institutions may well feel they have more questions than answers right now.
Smita Jamdar, will look at ways to manage a range of the potential problems this year will bring for the education sector and host a live Q&A session addressing the common issues we are seeing.
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Webinar transcript
(Please note this is auto-generated and un-edited)
0:00
Hmm.
0:10
Thanks very much for joining our session this morning which is looking at some of the legal issues arising out of the return to campus. Now, I should say at the outset so that it feels to me like arguably one of the most fraught returns to campus that we've ever seen and there are an awful lot of issues to get through. I do also want to try and make sure that there's time to answer any questions that you might have about the issues that I talk about or any other issues that you're facing. So, I'm going to go through this at pace, and also at a relatively high level. But if you are interested in any of the issues and would like us to run the Red Bull lengthy session on our, either for your institution, or indeed, just for the group, generally. Pleased to say, and we will do our very best to accommodate that.
0:59
So, what I'm going to cover today is trying to look at the various legal issues involved in the planning process. Map those against the sort of student rights issues that you're going to come across if students are unhappy with what they experienced once they return to campus. And talk a little bit about the complications posed by the sheer scope of the student experience. Some of the unknowns that we're still facing, what remedies students might have if they are genuinely unhappy with what they experienced once they come back to campus. And then finally, just some principles around how we might manage those legal risks as effectively as possible in the current circumstances.
1:44
So starting with the planning process And it I've been struck by the fact that literally every institution is highlighting the importance of the safety of students, staff, and other people involved in campus life. As they plan the return and it's perhaps an area of law, which has never really been tested in the context of this particular sorts of scenario pandemic. So, I think there are all sorts of potential issues there about the extent of the duty under health and safety to take reasonably practicable steps to protect people against the virus. And also, what happens to people who are affected by the university's activities, but not part of the university, in particular, local communities.
2:30
I think we're going to hear an awful lot about duty of care. And the minister yesterday made the point that mental health is vitally important. And it's something that, obviously, she cares about an enormously, and I know the sector has been trying to deal with. But all those issues are likely to become aggravated. Where we are seeking to impose some quite stringent rules on students about their behavior, about their socialization on campus.
2:55
And I think we're going to hear a lot about, about our duty of care to students, but balanced against that. We're also going to hear an awful lot about our duty of care to members of staff. And I keep coming back to this to the wider community, given that the potential impacts that the Returns campus has on those groups.
3:18
We already know that the unions have taken a very strident line about the return to campus. So far, I think most institutions are finding that at the local level, stuff as supportive and stuff are very keen to make sure that that return happens as smoothly and safely as possible. But it is, again, the case that we can see that certain employment issues, grievances, possibly even whistle-blowing, may come to the fore and institutions I think need to be ready to deal with those if and when they arise.
3:48
Um, data protection and GDPR, you are likely through testing and so on to suddenly be handling large amounts of the category of data that perhaps hasn't been that significant in your data. Protection thinking up till now, IE health data for large numbers of stuff and students. And, so, clearly making sure that that's managed properly is going to be important to reduce any risk of any fines, et cetera. But obviously, the thing I wanted to really focus on at the moment is looking at what students rights might be if they are unhappy with what they experience when they return to campus.
4:28
one of the challenges about looking at students' rights is the sheer breadth of the areas of law that they potentially have rights under. Clearly, a great deal of focus will be on that contractual rights. We know that, from the experience of last term, we know that the AIA, and the RFS have issued guidance which talks about the importance of delivering something that approximates quite closely what the students were promised.
4:54
But we also know that one of the challenges of managing this return to campus is that, even if you start with a package of measures, which looks a bit like what they were expecting when they applied for the course, it's possible that you're going to have to dip in and out of those as the public health situation changes.
5:14
So, it is eminently possible that students at the end of all this will have claims, you know, relating to breach of contract because that will, ultimately, it was delivered, was quite far from what they were promised.
5:28
We've talked before about force majeure clauses and making sure that those are in place. But ultimately, there is a limit to how far a force majeure close can protect, if what you've ended up delivering is actually not the same experience or course at all.
5:44
It's worth also remembering that certain students will also be able to bring claims for discrimination.
5:50
And one of the questions that we've been asked to advise on recently is, the extent to which conditions which were not disability in the normal climate of operation, become disability because people are exceptionally vulnerable as a result of the virus. So those that might be a new category of people, for whom you have to make reasonable adjustments, and for whom you, you have to think carefully about how you adapt the experience for them.
6:22
Public law and human rights issues, It's always clearly the case that in all of these things, there is a recognition that in a pandemic, individual rights have to be sort of subsumed by the greater good. So that's that's not a particularly controversial proposition. But you can see students who start to say, well, actually the stringency of the measures that I'm being subjected to on campus are such that my human rights that are being affected, my right to a private life, for example, is being affected. I wouldn't overstate that. But it is when you hear about some of the things, especially in America, institutions are asking students to sign up to not leaving their accommodation, you know, after five o'clock, for example. Only leaving to get food or go to the toilet. These are quite stringent controls on individual freedoms. And you can see that as as if if it drags on, people will start to challenge and ask exactly how proportion that some of those interventions are.
7:19
So, we need to be ready to answer those points. It, from one that raised. And public law, I think the issues will become relevant, because if we are having to take more disciplinary action against students who've transgressed, then clearly we need to try to ensure that we are complying with things like the rules of natural justice effect process, that they knew in advance. That kind of behavior they've engaged in would lead to some sort of action. And, again, making sure that we've been very clear with them throughout about what the expectations are, and as well as reasonable about what those expectations are, will be key to, to that.
8:00
As I said earlier, I think one of the big challenges for universities you're used to spinning lots and lots of plates, I mean, that's just university life.
8:08
But it's specifically trying to deliver something that looks like the contractual experience, whilst you've got such constraints across the full breadth of the student experience is going to require some quite careful thought planning and communication. So, as far as we can tell with teaching, learning, and assessment, institutions are relatively confident that they can put in appropriate measures, although, again, there is that uncertainty about whether you're going to need to dip into more online provision rather than face-to-face.
8:42
Then you'd expected if local, lockdowns, or local health conditions require, I think, with accommodation, the real risk is that students will take the accommodation. They will then argue that actually, they didn't need the accommodation if substantially large amounts of the code ends up being delivered online.
9:02
And there are sort of limits to what you can do to facilitate the flexibility around accommodation that students might want, but we can see that students may ask for that.
9:14
Other facilities and services, again, the university experience is not just about teaching, learning, and having somewhere to live, it's about access to Castro and Welfare Services, some of which can easily be replicated online of those less so.
9:30
But also the general experience of going and living in a community.
9:36
I was reading a piece this morning on one Key by the Cambridge University Students Union, which is very much highlighting that the advantage of being residents is not so you can get to your lectures easier, or your seminars easier. It is to engage with your fellow academic community. And we need to think about how, how can that be facilitated? But I can see a lot of complaints coming through because that side of delivery isn't as easy to manage as teaching, pure teaching, learning, and assessment.
10:07
And then lastly, of course, social experiences, You know, beating up with your mates, going out for a few drinks, going to a party.
10:14
The household roles that are emerging are potentially quite burdensome. I think the universities and also quite, you know, oppressive for some students the vice chancellor of the University of Bolts and in an article at ... talked about being allocated to a flat of six people. And that's your new family.
10:36
I found that actually quite chilling in a way because how many of us would upset that the first six people we happened to meet a university were the people that we wanted to spend the next three years? Or certainly the next year.
10:46
So, I think social experience there needs to be some communication by the University about the expectations, but also some recognition about how hard that is going to be for some students. And that may, again, drive greater demand for welfare and pastoral services as people are unhappy with them with the position that they find themselves in.
11:10
There are, of course, many, many unknowns about how this is going to play out over the next few months, which complicates the legal position. So the first thing is evolving government guidance. We've seen that there is this tendency to issue guidance quite late in the day, and also then to issue any clarification deregulations even later in the day, So that constant need to keep on top of the guidance. Make sure what you're doing with it is.
11:39
it is appropriate, will be a theme throughout the next few months. And, again, what struck me when I was reading what the Minister have to say yesterday to the universities, UK was an almost veils sort of threads that if guidance wasn't followed, then campuses would not be kept open in the way that we want them to be kept. And I didn't know if she was referring to the powers in the coronavirus Act to actually enforce temporary closures. Or she will be simply saying that the expectation then would be that students would be effectively confined to courses when they weren't studying, which would clearly be a very difficult position for many students. We still don't really know, as I understand it, how many EU and international students are going to turn up? That could put pressure on planning. Either way. There's too many, or too few, and could also call into question the site. And then, let's do some of the courses you're running.
12:29
Which makes, you know, planning for closure, of course, is murder, of course, is much more important. And even with the students who do turn up, my own fear is that we may see more withdrawals than we would normally expect to see as people turn out and don't like the kind of rules that they're having to start.
12:50
So, most of you will have a provision, which sort of allows students to withdraw without penalty, without any liability for a period of, you know, a couple of weeks. And if they do so, then, the impact of that on the experience for the rest of the student body. And also in your planning, could be quite significant. And, we are only really just starting to get our heads around the effects of local lockdowns and even where there are no lockdowns, the pressure that comes from communities about their anxieties.
13:20
That relate to students starting back at term and it creates this constant pressure to communicate and also to flex your measures so that the specific local knockdown rules or the broader community interests are reflected in them.
13:41
And then even where you don't actually have any real risks associated with returned to camp because there is this just huge reputational point that if there are problems in a local area, universities are often going to be singled out as the single biggest collection of individuals from other parts of the country and so on.
14:02
I think all of that brings the real challenge to how we carry on with our safety measures and not get dragged into, you know, repeatedly tweaking them because of these sort of external pressures that we find.
14:16
And if students are genuinely unhappy with the experience that they have, what are the remedies? I know that most of you on this session will be well aware of them, just to pick out a couple that are on there.
14:30
The first days, although we haven't really seen any case law yet about repeat performance, this remedy that's available to students under the Consumer Rights Act, my own feeling is that's going to be a difficult remedy for them to enforce in circumstances where you cannot perform to the contracts because of these external circumstances. Although the legislation doesn't actually say that, it simply says where it's not possible to have a repeat performance. The main remedy will be price reductions, and that, I think, is the sort of space that we will be in for a lot of students. If they can't prove any specific financial loss, they may will still be entitled to a price reduction, because the experience is so different to what was promised to them. Again, force Majure Clause may possibly affect that. I've put inject injunctions on that, although that's not a regular sort of remedy that you would be expecting students to claim.
15:23
My thinking there was that if we are ending up, as as happens in the US, where you're trying to be ineffective spell large groups of students because they have misbehave, they haven't followed the rules. Whether there may be some challenge to that, to say, a damages isn't inadequate remedy. I'd like an injunction stopping the University from expelling employees.
15:44
Um, the ..., in the, our first approach, they, they, they both sort of published their guidance back in June.
15:50
And, at that stage, I think optimistically assume that by the start of term, the position would be much much cleverer than it has been. So, I don't know if we're going to see some refinements of their approach, though.
16:02
I, for example, said that they wouldn't expect anybody to be relying on force majeure courses now, because we knew about the pandemic and we had time to plan. But, frankly, I don't agree with that. I think, you know, if you have a force, Michelle closed, that's a reasonable one. It should still apply now because the force majeure event is ongoing, and you are still unable to deliver as you had originally expected, three circumstance is outside your control. I think what's interesting is that the CMA has really dropped out of the picture completely and we should probably all be thankful for that and not necessarily encourage them to return. They, you know, they I think they recognize the difficult position that providers are in, and they wouldn't expect to get involved, unless you were sort of flagrantly, breaching consumer rights, which I'm not aware of any institution doing.
16:51
But there is the possibility that, as the dust settles, they may come back into the picture if they feel that consumer protection has not been well observed.
17:02
I said, lastly, you know, how do we basically do our best to try to avoid some of the outcomes that I have described? And I would say that, you know, the points on this slide are absolutely the right ones. Although they're not easy to maintain. So the first thing is clarity. If, you can be clear with students about what is certain, what is still uncertain, what may still change you, reduce the risk of complaints enormously because they are anticipating that. Things may not be quite as they, they originally thought they would be.
17:34
Ensuring consistency across the institution is also important. And sometimes, a challenge for universities because, not every part of the university's as willing to adopt central, you know, edicts, as others. So, consistency will be an important part way of avoiding unnecessary complaints from students.
17:54
Ideally, what we want to do is reduce the complaints by ensuring that, wherever possible there has been compliance with safety measures and compliance with what we've said we're going to do for students. But, I know that's not always possible, and that's why we have to think forward to the complaints.
18:09
I'm communicating with students regularly, involving them in the decisions, wherever you can and will be important, not just from a risk management point of view, but also from a regulatory point of view. I think both CIA and the RFS will be more sympathetic if students have been involved in some of the underlying deliberations. And then, lastly, this might sounds rather strange coming from a lawyer, but I would also say that, wherever possible, showing compassion, staff, students, everybody involved is going to be struggling. We're all struggling, to some extent.
18:44
And it would be good if institutions were able to respond in a compassionate way, not immediately, you know, stepping into sort of draconian option, but trying wherever possible to encourage support, rather than discipline.
19:01
So, I'm hoping that, that has left us some time for questions. I will stop sharing my screen now and ... if we've got any questions.
19:13
I think case Nita. And we have had some questions. The first one is, can students leave their accommodation and refused to pay accommodation fees if the university moves all teaching online?
19:28
OK, I mean, that's a question that's going to, in some ways, depend on precisely what's in the accomodation agreement for any particular institution.
19:40
But if there is nothing in the contract that allows the student to exit early because they no longer need the accommodation, which is frankly fairly commonplace, that I think the student would have to show that they were led into taking the accommodation on the basis of the assurance that they would need the accomodation for the purposes of study.
20:03
As long as institutions of being clear about what they're offering, and clear about the fact that there may need to be a shift to online, then I think students may struggle to establish that from a legal perspective. Of course, there will be enormous pressure, just as there was at the end of last term, to say, you need to do something about this. And as happened last, once an institution takes the view that they will refund accommodation fees that are no longer needed because it's all move to online, and the students could just as well be at home, it becomes harder for the rest of the sector to sort of hold the line that they won't, won't pay that.
20:42
But I think from a legal perspective is not the most straightforward have challenges Unless they can argue they were misled into entering into the contract, OK. So, the next one is should students be able to temporarily withdrawal and return next year, if what's provided is not what they expected with the potential impact of numbers For 2020, 122?
21:08
I don't think that there is, as I said, for most institutions, there will be some rights to withdrawal at an early stage. We're not in the territory of statutory cancelation rights, except perhaps for students who take place, is very late in the day, but most institutions will have their own policies, which say you come withdrawal up to 14 days.
21:29
So, withdrawal, I think, is, is, in most cases, there will be something which allows students to withdraw if they do so quickly. And I'm not sure that there is any right to insist that the place is held open to them for next year. And that may well be something that means, you know, people don't withdraw because they're worried about. Exactly.
21:49
As you've said, there are exactly as the questioner has said about what the impact will be the following year if they have to re-apply and go back into the cycle. It may well be that for some students offering them a deferral if they are deeply unhappy, might be a good way of helping them mitigate their loss.
22:10
So, you might decide, on a case by case basis, that actually, the risk of a claim here is so high. It could be effectively mitigated if we offered a deferral, and then you might choose to offer the deferral. But I don't think that any of the remedies that I was looking at in the slide earlier extend to saying deferral is a right that they can insist on.
22:35
Thank you for that. And next one is, to what extent does the university A duty to the local community?
22:44
And hence, to include in its plans regarding managing risk of transmission, OK, for 19 my students.
22:51
So in the health and safety at work legislation, you do owe a duty to people who are not your employees, but who might be affected by how you conduct your undertaking.
23:00
So it's possible that that could, in certain circumstances, extend to the community around you, and equally, the definition of legal duty of care is, is very broad. I can't remember which case it was that said that the categories of negligence and never closed, you can always find a potential route to argue that you owed a duty of care to somebody take reasonable steps to prevent harm occurring to them. So, from a legal perspective, there are potential routes to establishing a liability and a duty towards the wider community.
23:35
But in terms of claims or challenges, I think the biggest problem is going to be firstly establishing that causation. How does the community show that the transmission has happened through what the university did rather than through what anybody else did? And secondly, that actually the university has not taken all reasonable steps, because reasonableness recognizes that you can't guarantee that the home won't occur. You can only do what's reasonable to prevent it. So, provided you've got, you know, risk assessments, you've implemented them. You've tried to manage the risks. It may not be possible to show that you've fallen below the duty of care in any event. Now, that's all looking at it, of course, from a purely legal perspective, and saying, legally kinda claim the problems. We know, because it happens already that communities will put pressure on institutions to say, You know, protect our interests in your thinking. And I think most institutions are probably already thinking about institutions in, in, I'm sorry about that, the local communities in that way.
24:37
Um, I do fear that that is going to become an increasing theme. Anecdotally, I was quoted in the Guardian a few weeks ago just making the point that you know, local communities are anxious about the return to campus and I was then contacted by the Association of Residents Associations, Chair, so their sector body Who said, you're absolutely right, and we don't think anyone's listening to us enough. So it just felt to me like there were signs that that could become quite a big issue certainly over the next few weeks.
25:11
Case me to put the essential aspect of the student experience be construed as part of the university student contract, with the result that any significant erosion of it is actionable as a breach of contract.
25:26
It's caught. That's a very interesting question.
25:31
The Consumer Rights Act kind of changed the legal approach to the social experience, because what it says is that anything that is said by, or on behalf of the institution which students rely on and deciding to enter into the contract forms parts of the contract. So it's a very broad interpretation of what forms part of the contrast, And it's not limited just to specific teaching and learning, or specific services. So that potentially means that, you know, if you've, if all your promotional material majored on the fact that you had a highly social campus, it was a great way to meet people and so on, and that's not available that students may feel that something that they expected to get and persuaded them to come to your institution over. Anybody else's has been, not not deliberate.
26:20
Whether it's a breach of contract, will, of course, depend on the terms of the contract and whether or not you had expressly said that, in certain circumstances, you may not be able to deliver everything that you had promised whether that clause is itself reasonable.
26:35
But if it's right, if there is no no effective exclusion clause, and it's quite clear that students would have looked at what was said about the social experience, and taken into account, then potentially they have got the remedy of the price discount. It's probably very difficult for them to show, that they suffered any actual financial loss as a result of the failure to have that social experience. But for the price reduction, you don't need to. You simply need to say, this was something that I was told I would get, It, was something that was important to me. And it hasn't been delivered. And, therefore, I should not have to pay the full price that I agreed, for.
27:18
Example, In the explanatory notes, to the consumer rights, that the example that was given to, that was, you know, if a trader has said that they pay a living wage, and they don't, Because a consumer might be, studying people, being paid a living wage is something that's important to them. They should therefore have this remedy of a price discount.
27:37
So, it's a very broad and flexible approach to failure to deliver things that were no effectively promoted as part of the, the overall offer.
27:52
OK, Oh, actually, I can see that one's just appeared from Linda.
28:00
So, the question that's just come up is, To what extent can we discipline students for failure to comply with the institution's covert security measures? So, they.
28:13
That, obviously, as part of the student contract, there is a right to take disciplinary action if students infringe the code of behavior the disciplinary framework that you have set up. So, the first question you need to ask yourselves is, Is there something in that that covers complying with covert safety measures, not necessarily specifically covert safety mentioned, because you wouldn't have known what they were at the time.
28:38
He drafted them, but safety measures more, generally, and a lot of you will have, for example, failing to follow health and safety rules as a disciplinary offense, so that's a basis on which to take action. Secondly, you'd need to show that students knew in advance.
28:55
Although, I would argue, not necessarily, At the point at which they accepted the offer, I'll come back to that in a minute. Knew before they engaged in the behavior, that it was behavior that might lead them to being disciplined. So something that sets out very clearly what the covert safety measures are and the extremist disciplinary action might follow. It's helpful. If you have something in your terms and conditions, which says something like, We reserve the right to add to our regulations, or to clarify our regulations, if external circumstances change. So, that then gives you the sort of triangle of saying, New, we have these disciplinary regulations, you knew we could add to them in certain circumstances. Here is our new set of behavior around Covert Security measures, and therefore, you must now comply with it. And if you don't, we will take disciplinary action under our usual procedure.
29:52
I think if any Pitt's if that's missing, it becomes harder.
29:56
But certainly, clarity of expectation. And the fact that they know, before they commit the behavior that it could lead to disciplinary action is absolutely key. OK, Well, I hope you found that useful. Thank you very much for joining us.
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