How not to get sued

June 26, 1998

University teachers must keep their balance as students become more litigious customers. Alison Utley offers some advice

What happens when a South-east Asian student flunks her degree then sues the university for failing to fulfil its obligations by admitting her in the first place?

An intriguing reversal of a race or sex discrimination case, the story serves to illustrate how a growing number of students are flexing their legal muscles.

Nicola Hart, head of the education team at law firm Martineau Johnson in Birmingham, says that so-called unfair failure is rapidly becoming a student favourite. Ms Hart, who acts on behalf of universities, says that most of the student claims that handles come from students who would struggle to meet reasonable degree standards. "It is usually a childish cry of it's not fair."

But is there a duty on the university to weed out unsuitable applicants or else face a claim based on failure to do so?

The South-east Asian student was studying for a social work qualification.She maintained that it was always going to be impossible for her to accommodate the cultural issues that are part of a social work course in the United Kingdom.

Her claim was based on negligence. There was a duty on universities to make sure applicants were well-informed about the course, she argued.

"It is a fine line to tread, especially when there are pressures to get students signed on courses," Ms Hart said.

What if a student claims failure because of poor teaching? Ms Hart has dealt with a number of such claims, but none has succeeded. This is no reason for complacency: "Universities really must make sure they have a good framework of procedures and that they stick to them," she said.

Law lecturer Tim Birtwistle of Leeds Metropolitan University has carried out research showing that student academic appeals have risen at more than 50 per cent of universities over the past two years.

The vocabulary of higher education now includes many so-called conflict words, such as harassment, grievance, complaint, appeal, discrimination, mitigating circumstances and so on, he says.

"The subtext of these words is the increase in monitoring, the growing demand for transparency of mechanisms and the shift to consumerism. If you can understand the context and the culture, you can avoid conflict." The academic is often the boundary for the relationship between the student and the institution and the connection between the student and the system.

"The student may expect that the class they attend is 'good' and presumably the lecturer wants to deliver a 'good' class. The problem is what is a 'good' class for the individuals concerned," he said.

This conundrum of teaching quality will remain just that, Mr Birtwistle suspects, because irrespective of bench marking, quality assurance and performance indicators, the nature of the experience is intrinsically subjective.

It is not in the best interests of any of the participants to reach the stage where courtroom confrontation arises, he added, but there are some simple steps lecturers can take to avoid complaints:

* be aware of the level of performance your institution requires, including timescales for returning assessed work and mechanisms for giving extensions.

* avoid physical conflict and be aware of the potential for allegations of sexual harassment that may require an open-door policy for meetings.

* adhere to factual statements in references to avoid the possibility of an action for defamation of character.

* log meetings to show that supervision has taken place.

"To avoid conflict is always better than having to deal with conflict," Mr Birtwistle said. Universities see claims as a nuisance and an unwelcome expense. "Students will dedicate their lives to claims and they can be extremely difficult to get rid of," Ms Hart said. "Some institutions decide to settle out of court just to put an end to it."

Establishing a causal link between poor teaching or support and failure leading to loss is difficult, she believes. Not only does the claimant need to establish that the teaching was poor - tricky unless the lecturer repeatedly failed to turn up - they also need to prove that they could have succeeded.

But the introduction of student fees could swell the tide of student litigation, Dennis Farrington, an expert on the student/university contract at Stirling University, said. Although the floodgates might not open, universities needed to be aware that the consumer contract would be reinforced by the payment of fees.

Many institutions are forming working parties to investigate their legal obligations and a recent conference on contract organised by marketing firm Heist was very well attended. Organiser Patricia Gray said: "The increasingly commercialised environment in which universities now operate brings legal considerations to the fore in virtually every aspect of life."

Neville Harris, of Liverpool John Moores University and editor of Education Law reports, said: "Students are threatening litigation all over the place, particularly those who did not get the degree they expected. Once students read of a few cases there is a bandwagon effect."

Elaine Maxwell of Marsden Huck Solicitors, who acts on behalf of students,said that 1990s students now invest their own time and money in higher education and are determined to get good value.

Mature students in particular may be giving up well-paid jobs for the more nebulous benefits of an academic qualification. "Students tend not to be interested in learning for its own sake, but regard it as a means to an end," she said. "They feel they are buying a product and that product is a degree rather than the opportunity to learn."

Ms Maxwell says there are five main areas of dispute with students: acceptance into the institution; academic assessment; course delivery; disciplinary issues; and ancillary financial issues, such as accommodation.

"To someone of my generation the idea that someone could challenge their grades is complete anathema except in cases where an obvious error has occurred in calculation," she said.

However, these cases are appearing regularly. There may also be problems where the method of assessment is changed without proper warning. If a student can show they have been adversely affected, they are quite likely to bring a claim, said Ms Maxwell. The existence of exclusion clauses in the contract may not give much protection if the change is severe enough.

"The basic rule should be to avoid changing the system half way through the course. If changes really are necessary, make sure as much notice as possible is given and discuss at length with your National Union of Students representative on ways of mitigating and reducing problems for individual students."

Ms Maxwell said that in a business, skimping on quality is no way to ensure continued success. Equally, universities no longer have a captive market. Mature students, in particular, resent lecturers acting in an unprofessional manner by consistently turning up late for lectures, failing to give promised supervision or not marking proficiently.

"You need to nurture mature students as much as possible," she said. "They have invested a lot in the course and they are the most likely to complain.

"Many institutions arrogantly think they can treat all students like children. This is then compounded if they take advice from their local solicitor with little real experience of public law who subsequently goes for advice to a local barrister with equally little experience in this specialised area.

"This is a recipe for disaster and a huge bill for legal costs, escalating daily."

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