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2010
Case Study – A Pig of a Day
Effective Management of Student Contracts, Complaints and Appeals
Monday Morning – First Thing
University/Student Relationship
Obligations owed under:
• Contract
• Common Law
• Statute
• Public Law – Natural Justice
Balancing act – Students and Staff
University/Student Relationship – Contract
• Student Contract
• Terms – Express and Implied
• Incorporation
• Consumer – Fair and Reasonable
University/Student Relationship – Tort 1
• Common Law – Duty of Care
• Duty owed to students
• To take proper care (“Professional Standard”)
• Heightened duty owed to Vulnerable students
• Vicarious Liability
University/Student Relationship – Tort 2
Duty of Care owed to student
Has Duty been breached?
• Consider causation
Has student suffered loss/damage as a result?
• Mitigation
• Liability in Negligence
University/Student Relationship – Statute
Key Statutes include:
• Sex Discrimination Act 1975
• Race Relations Act 1976
• Disability Discrimination Act 1995
• Human Rights Act 1998
• Safeguarding Vulnerable Groups Act 2006
University/Student Relationship – Natural Justice 1
• Decision making by Public Bodies
• Duty to act fairly – Equality of arms
• Procedural and Substantive Fairness
Which means….
University/Student Relationship – Natural Justice 2
• Right to a fair hearing
• Unbiased hearing
• Opportunity to prepare and put case fully
• Impartial decision-maker
• Clear:
• Procedures
• Communication
• Decision making
Monday Mid Morning - Complaints 1
Why do Complaints arise?
• Breach of Promises – education or associated services, facilities
• Not meeting expectations
• Grumbles-------------------------------------------------------------------Litigation
Complaints 2
Effective Handling of Complaints
• Fair, clear and practical procedures, properly drafted and publicised
• Staff and Student Awareness and Compliance
• Prompt and effective investigation and responses in spirit of
co-operation
Complaints 3
Understanding the complaint
• Nature/Detail of Complaint
• Desired Outcome
• Balance competing interests
• Dialogue and Engagement
• BUT always remember:
• Document Management (Disclosure, Data Protection, FOIA, Evidence)
• Record Keeping, Audit/Justification Trails
Monday Early Afternoon
• Human Rights Act • The Employment Equality (Religion or Belief) Regulations 2003 • Forthcoming Equality Act
Radicalisation and Extremism Guidance
“Promoting good campus relations: dealing with hate crimes and intolerance”
Universities UK 2005 but still contains some useful material and guidance: http://www.universitiesuk.ac.uk/Publications/Documents/promotinggoodrelations.pdf
The Equality Challenge Unit (“ECU”) updated Guidance in 2007: http://www.ecu.ac.uk/inclusive-practice/promoting-good-campus-relations-imperative
New Universities UK Working Group, chaired by UCL Provost, Professor Malcolm Grant, to look at how universities can best protect academic freedom whilst takingappropriate action to prevent violent extremism.
Discrimination Round Up
Case Law:
• Race Discrimination – Leeds City Council v Woodhouse 2009 EAT
• Religious Belief Discrimination – Nicholson v Grainger plc 2009 EAT
• Chondol v Liverpool City Council 2008 EAT
• Eweida v BA plc 2010 Ct Appeal
• Islington LBC v Ladele 2009 Ct Appeal
Discrimination Round Up
RACE DISCRIMINATION
Leeds City Council v Woodhouse [2009] EAT
Employers can be liable for discriminatory actions by their employees against third parties who they do not employ.
This may be relevant to clients or end-users in tri-partite arrangements, such as outsourcing or agency work. Avoid through the use of clear policies, training and effective line management.
Discrimination Round Up
RELIGIOUS BELIEF DISCRIMINATION
Nicholson v Grainger plc [2009] EAT
Beliefs about climate change can be “beliefs” for the purposes of the Employment Equality (Religion or Belief) Regulations 2003.
• The belief would have to go beyond a “mere opinion” and give rise to a moral order similar to most religions.
Chondol v Liverpool City Council [2008] EAT
It is not discriminatory to merely ask employees not to overtly promote their religious beliefs.
Discrimination Round Up
Eweida v British Airways PLC, Court of Appeal 2010
The Court of Appeal held that Mrs Eweida had not been unlawfully discriminated against by BA.
BA’s uniform policy required Mrs Eweida to conceal the cross on her necklace under her uniform.
The court found that Mrs Eweida had not suffered indirect discrimination, as BA’s uniform policy does not place Christians at a particular disadvantage.
The wearing of a cross was not a requirement of the Christian faith. In addition, there was no evidence of Christians failing to apply for employment, being denied employment or failing to progress because of BA's uniform policy.
Discrimination Round UpRELIGIOUS BELIEF DISCRIMINATION (cont.d)
Islington LBC v Ladele 2009 Court of Appeal
The Court of Appeal held Ms Ladele had not been discriminated against whenshe was disciplined due to her refusal to comply with the Council’s Dignity for all policy and officiate over Civil Partnerships.
The Court of Appeal held that she had not been treated less favourably because she was a Christian but because of her beliefs emanating from her Christian faith. The requirements for her to undertake work for Civil Partnerships may have put her at a disadvantage due to her religious beliefs, but the Council’s actions were justified because they were a proportionate means of meeting the legitimate aim of being an employer and public authority wholly committed to the promotion of equal opportunities and to require all employees to act in a way which does notdiscriminate against others.
Monday Late Afternoon
• Fitness to Practise
• Fitness to Study
• Reasonable Adjustments
• Mental Health
• Convictions Handling
Birketts LLP Contact Details
Sara Sayer – Head of Education Dispute Management and Student Issues
Direct Dial: 01223 326763
Mobile: 07983 385840
Email: [email protected]
Abigail Trencher – Head of Employment Education
Direct Dial: 01223 326622
Mobile: 07983 385842
Email: [email protected]
