Nine Scottish universities and thousands of students were impacted by industrial action over 14 days in February and March which was called over proposed changes to lecturers’ superannuated pension scheme, however any class action against is likely to face significant legal, financial and logistical hurdles before any case become reality in the UK courts.
Although UCU members have agreed to suspend further industrial action, a consequence is that a number of law firms have been actively seeking students to join class actions against their universities, and those firms are estimating that the value of those claims could exceed £10 million in total.
However, this apparent rush to litigation seems premature, given the overriding expectation of the courts that parties will first explore all appropriate forms of alternative dispute resolution before claims are issued. In the case of the university sector, it is much harder to justify going to court when each institution has its own internal complaints mechanisms.
The majority of universities have terms in place to cover strike disruption. Should future claims proceed to litigation, the courts will first have to assess whether these “force majeure” clauses are competent and operate to protect a university from liability for non-performance or late performance of its contractual obligations in the event that issues, such as industrial action, arise which are beyond its reasonable control.
Force majeure provisions can be challenged in the courts, or indeed by the Competition and Markets Authority, as they operate as an exclusion of liability in a consumer contract. The courts will expect a university to demonstrate that its force majeure provisions are fair and reasonable, and that it has taken all reasonable steps to avoid the operation of the event.
There is strength in the argument that the recent industrial action should be classified as a force majeure event. The strikes were widespread and were a consequence of decisions taken by the Universities Superannuation Scheme, not the individual universities themselves, and there is a view that the industrial action was arguably beyond the reasonable control of any individual institution.
The court will need to assess the reasonableness of applying the provision in the case in question. This will depend on the evidence that the university holds to demonstrate that it did all that it reasonably could to avoid any disruption affecting a particular course, cohort or student. This evidence could include details of the rearranging of lectures and assessments to address any lost teaching hours, as well as reviewing or making changes to academic regulations in cases where assessment criteria changes are required to address any more significant impacts on subject teaching.
If force majeure is not accepted, the courts will be required to consider whether the late delivery of some teaching commitments over the 14 strike days would be sufficient to constitute a breach of contract in relation to the delivery of a degree and thereby give rise to a claim in damages, or for a reduction in price under the 2015 Consumer Rights Act. This is not as straightforward as the claims lawyers would suggest, as the university and student contract is unusual and does not sit easily with other consumer relationships.
In the end, it may be that commercial realism will give universities the opportunity to resolve student claims without the cost and stigma of legal action. In the meantime, universities still have a window in which they can be proactive in reviewing complaints internally, with a view to minimise the risk of litigation in the future.
- Julian Sladdin, partner and dispute resolution specialist at law firm Pinsent Masons