2010 Case Study – A Pig of a Day

1. 2010 Case Study – A Pig of a Day Effective Management of Student Contracts, Complaints and Appeals

2. Monday Morning – First Thing • University/Student Relationship • Obligations owed under: • Contract • Common Law • Statute • Public Law – Natural Justice • Balancing act – Students and Staff

3. University/Student Relationship – Contract • Student Contract • Terms – Express and Implied • Incorporation • Consumer – Fair and Reasonable

4. 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

5. 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

6. 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

7. University/Student Relationship – Natural Justice 1 • Decision making by Public Bodies • Duty to act fairly – Equality of arms • Procedural and Substantive Fairness • Which means….

8. 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

9. Monday Mid Morning - Complaints 1 • Why do Complaints arise? • Breach of Promises – education or associated services, facilities • Not meeting expectations • Grumbles-------------------------------------------------------------------Litigation

10. 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

11. 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

12. 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 taking • appropriate action to prevent violent extremism.

13. 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

14. 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.

15. 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.

16. 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.

17. Discrimination Round Up • RELIGIOUS BELIEF DISCRIMINATION (cont.d) • Islington LBC v Ladele 2009 Court of Appeal • The Court of Appeal held Ms Ladele had not been discriminated against when • she 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 not • discriminate against others.

18. Monday Late Afternoon • Fitness to Practise • Fitness to Study • Reasonable Adjustments • Mental Health • Convictions Handling

19. Birketts LLP Contact Details • Sara Sayer – Head of Education Dispute Management and Student Issues • Direct Dial: 01223 326763 • Mobile: 07983 385840 • Email:sara-sayer@birketts.co.uk • Abigail Trencher – Head of Employment Education • Direct Dial: 01223 326622 • Mobile: 07983 385842 • Email:abigail-trencher@birketts.co.uk