As we embark on a new academic term, two judgments from earlier this year: AB v University XYZ  EWHC 206 (QB) and AW v St George’s, University of London  EWHC 1647 (Admin) provide helpful insight for institutions to consider when initiating formal processes against their students.
AB’s legal action was prompted by the university's decision to expel him further to accusations of sexual misconduct during his Erasmus year abroad. At the time of his expulsion he was a final year student and was due to complete his studies in June 2020. The claim was founded in contract and this judgment was prompted by his urgent application for injunctive relief, which sought to get him back to University XYZ in time for his finals.
AW was a medical student at St George’s. Following a number of years, which included periods of absence for medical reasons; narrow failures of examinations; and a refusal to attend her occupational health appointments and placements, the university decided to terminate her registration on fitness to practise grounds. She launched a judicial review of this decision.
Whilst the cases have different factual backgrounds and the students chose different routes – one judicial review and one breach of contract claim, there are key points that higher education institutions can learn from these fascinating judgments as summarised below.
Firstly, have you made the consequences of the student’s actions sufficiently clear to them? The judgment in AW makes two opening remarks. The first is that termination of a student’s registration would in most cases be a serious matter for the student; and the second is that a university may nonetheless, in hopefully rare cases, have the need to terminate a student’s registration or to send him or her down.
In this instance, the university had written to the student explaining that a failure to attend an appointment would mean that she was disqualifying herself from being able to return to study such that she would not be eligible to enter the exams later that year; that if she did not complete that academic year she would be unable to complete her degree within the maximum registration period; and that she would not be able to graduate.
When AW cancelled the appointment and failed to attend a placement, the university decided to terminate her registration. However, having considered the arguments, the judge quashed this decision on the basis that a university place may not be withdrawn without the clearest of warnings and the opportunity to make submissions and provide evidence. It is not enough if the student repeatedly refuses to do something they have been told to do. The problem in this case was that the university had not explained to AW that if she did not attend an occupational health assessment before a certain date, the university would decide whether or not her registration should be terminated. Simply put, none of the university’s letters said, “Do X by Y date or your registration will be terminated.” In addition, the university had not sought her observations or submissions on the point.
Secondly, institutions must check that they are using the right regulations or disciplinary code. They should not seek to apply a newer version retrospectively.
In AB, University XYZ applied its updated regulations and sexual misconduct policy, both of which came into force on 21 September 2019. This was despite the alleged misconduct taking place almost a year earlier in October 2018. University XYZ was ultimately lucky that the judge found: "Having reviewed both versions of […] I am not satisfied that there is any material difference between the procedure that was followed, and the procedure that would have been followed, if the disciplinary hearing had been brought under the correct regulation. In my judgment the procedural irregularity was very minor...” Checking that the version of the regulations you are seeking to rely on is the correct one should be top of all institutions’ to-do lists in disciplinary cases.
Next up - how wide is your institution's jurisdiction? In AB the alleged misconduct took place overseas, in a private residence and involved a student from a different UK university. However, University XYZ's jurisdiction was widely drawn. The relevant regulation explicitly stated that improper conduct and behaviour was capable of amounting to misconduct whether it takes place on university premises or elsewhere.
The judge noted that: "the claimant was not on a private holiday." However, she went onto say that: "Whether the claimant was in the UK or in Europe, attending a student union event or a private engagement with friends, in student halls of residence or in a private apartment, as an enrolled student of the university, there was a legitimate expectation that he would adhere to appropriate standards of behaviour. The claimant agreed to be bound by these standards when he enrolled as a student in 2016. If there was sufficient evidence that he had failed to do so, the university was duty bound to investigate the matter in accordance with its disciplinary procedures."
In addition, University XYZ’s regulations referred to "improper interference in the broadest sense with the proper functioning or activities of the institution or action which otherwise damages the institution." This sort of ‘catch all’ provision will be familiar to many universities, and the judge had some interesting points to make about the proper scope of universities' duties flowing from a widely drawn disciplinary provision: "A reasonable person, credited with the background knowledge of the nature and purpose of higher educational establishments, would expect and understand that the university's obligations extend beyond the provision of education. Furthermore, the Office for Students (OfS) is the independent regulator for higher education in England. All universities which are regulated by OfS must meet certain conditions which, over and above a high quality academic experience, includes ensuring that the safety, welfare and interests of all students are protected while they study. This includes protection from sexual misconduct.”
Whilst the proper jurisdiction of any institution will ultimately come down to an interpretation of its own regulations, these judicial comments about the breadth of institutions’ remit and the scope of disciplinary reach will certainly bolster those who want universities to take a more active role in investigating allegations.
Finally, the AB judgment dealt with the right to legal representation. Whilst the claimant was allowed a supporter, who could in principle have been a lawyer subject to permission of the chair of the disciplinary committee, he was denied a legal representative to answer questions and otherwise advocate on his behalf.
There was no dispute between the parties that legal representation in internal proceedings is not a universal right. As one would expect, the parties focused on the leading case of R (G) v X School Governors, with the university arguing that the judge should determine that legal representation was not appropriate in AB’s case. However, the judge found that the prospect of having to cross examine the complainant, in combination with the tricky issue of consent in AB’s case, was enough to distinguish it from G. She went on to say that: "In my view, it would not be appropriate for the disciplinary hearing to become lengthy and legalistic. However, some exploration of these issues will almost certainly be required, and the question is whether the claimant could fairly be expected to deal with them. It is arguable that he could not."
This is interesting and ought to give universities pause before refusing legal representation to those going through disciplinary processes. This may be a particular concern when dealing with allegations of sexual misconduct where consent may be an issue and if the disciplinary process involves questioning the complainant, even if that is through a third party such as the chair of a panel. Whilst it does not give all students carte blanche to bring a QC along to every university disciplinary hearing, institutions should be alive to the prospect that some students will argue it does.
AW was successful in quashing the university’s decision to terminate her registration and the court invited the parties to determine whether it would be possible for her to resume her studies to complete the final two years of her medical degree.
AB was ultimately unsuccessful in his application but it may be that we hear more in relation to his case.
In any event, institutions should try to learn the lessons from these interesting judgments when embarking on formal processes against their student members.