Students at universities across the UK face ongoing uncertainty as to the awarding of degrees, as a dispute between 145 institutions and members of the University and College Union (UCU) continues. In this article, we summarise some of the key legal issues for higher education institutions (HEIs) and students.
UCU members have boycotted the marking of exams and assessments as part of a dispute over pay and working conditions, with the UCU pushing for a pay rise and an end to zero-hours contracts. Some union members have also taken part in additional strike days, arising from instances of members being docked pay during the boycott.
Whilst universities and staff grapple over the question of fair pay for lecturers, many students graduating this summer face uncertainty as to when they will receive their degrees.
According to one estimate by the Universities and Colleges Employers Association, some 13,000 students will be affected.
The picture across the UK is mixed: whilst some HEIs have reached deals with the unions, the dispute is ongoing elsewhere. In some cases, this has resulted in HEIs taking the decision to hold graduation ceremonies where empty scrolls have been given out to students.
Do the courts get involved in such disputes?
The obligations universities owe their student have already been the subject of consideration by the UK High Court. Just last week, the High Court ordered an 8-month stay to court proceedings in a claim brought by UCL students against the university for changes to teaching during the pandemic and industrial action. That stay has been ordered to allow for negotiations between students and UCL, by way of alternative dispute resolution as the student claimants had not made use of the universities' internal complaints procedures before bringing their claims.
Whilst that court case is now on pause, it is a timely reminder to universities and students of the obligations owed to one another and the potential for legal disputes in the Courts.
Are HEIs legally obliged to give out degrees?
The relationship between student and university is typically bound by each HEI's contract. This typically takes the form of terms and conditions provided to the student body which may be supplemented by other documents, including the student handbook and the University's governing documents, such as Statutes, Ordinances and Regulations. Within the contractual terms, an HEI typically commits to each student to provide certain services including appropriate teaching, resources and assessments.
The problem HEIs face is what happens when they are unable to fulfil the services they have committed to provide students with.
University contracts typically contain a force majeure clause which explicitly includes industrial action. Put simply, a force majeure clause stipulates that a party (here, the university) is not liable for breaching its contractual obligations where a certain event occurs outside of the control of the party, which may include industrial action either explicitly or implicitly.
Typically, such clauses require the defaulting party to show it has taken reasonable steps to mitigate the effect of the force majeure event. Against this context, many HEIs will have spent the last few months navigating the path between identifying viable alternatives to plug the gap in markers and continuing negotiations with the unions, either directly or through University employer associations.
At present, there is a mixed picture on the provisions HEIs are making to allow students to graduate this summer, where possible, despite assessments remaining unmarked. In some cases, HEIs are allowing students to continue to postgraduate study using predicted grades from undergraduate level, but it is not clear at present where this leaves students moving to postgraduate study elsewhere or into the world of work, particularly for those where their immigration status in the UK is linked to their university place or to graduation.
As graduation season progresses, it remains to be seen how this situation – and its impact on both HEIs and students – will be resolved.