Sexual Misconduct
With the #Me Too movement the goalposts governing the interplay between adults has significantly changed. The movement has also increased the pressure on Universities to act, or be seen to be acting, when students raise concerns or allegations of sexual misconduct. I have seen a marked rise in the number of cases being reported to Universities and witnessed an increase in the number of students seeking legal advice.
The manner in which Universities deal with such cases varies hugely, I have seen some quite concerning investigations into student conduct by some Universities. What is important to remember here is that University Investigating Officers are not trained to undertake such sensitive and specialised investigations. Their lack of training and experience can often mean students cannot expect a fair and impartial process. The Disciplinary Panels set up to hear such cases also hugely lack experience in these highly emotive and controversial cases. They can make life-changing decisions and findings with next to little or no qualification. Furthermore, the burden of proof is not that of a criminal court, it is much lower and is on the balance of probabilities.
It is not just the accused that are being let down by the University investigation process, the victims too are suffering. A number report they have not been treated with sensitivity or care. When they turn to the University for help, some have reported they have been told there is little they can do. This is a system that is letting everyone down.
Let us not forget also the impact this has on a student’s academic progress, often times students are immediately suspended pending investigation. Such suspensions can last months which gravely impact students academically, socially and even their mental wellbeing. Equally we need to consider the pressures a poor investigation places on the victims too, the impact on them is substantial and can seep through into every aspect of their life. This is a highly complicated area and should not be left to academics to navigate.
Covid 19 Impacting Your Studies?
With this global pandemic comes much uncertainty, but none more so for University students. With Universities still closed and fee requests and accommodation bills rolling in what does this all mean for you?
This global crisis is impacting in so many different ways, with everyone now moving online and no face-to-face teaching, are you getting your moneys worth? This no doubt is the first question most students have for themselves.
However, financial aspects aside, Covid 19 is impacting people in so many other ways too –
- Are you able to research your dissertation whilst in isolation?
- How can you be expected to prepare assignments when teaching has been moved online?
- What about the exams you have been unable to sit?
- What about the more practical aspects of some degree programmes, how can you pass placement if you are not able to attend due to social distancing?
- How will the University assess your grades for the year when your course finished so abruptly?
- What about those that have been personally hit by the pandemic; lost a loved one; suffered with the Covid 19 themselves, or are isolated from family and thus impacting mental health?
- What of the international students stuck in the UK without family, or abroad and unable to return?
The list of problems and questions go on, but where are the answers…
At some point Universities are going to have to start making decisions about how they will treat students and trust me they will not always get it right. Students need to be ready once this happens. If you want to ensure you get a fair outcome you need to be armed with good legal advice. If you want to understand your options and how to pursue them contact Sukhvir Gill our Education Law Solicitor for advice.
Mental Health and Universities
The transition from school to University is difficult for most, if not all. The added pressures of escalating University fees and debt, coupled with the increasingly competitive job market once you finally leave University can lead to untold stress. For those already vulnerable, with mental health issues, this can lead to a stressful and negative environment. With stress can come an inability to manage academic success.
Thankfully, the stigma around mental health is diminishing and record numbers of students are disclosing mental health problems in the application process. The benefit of this is that Universities will be better able to support students with underlying mental health problems once on notice of them. Further, it affords the student protection under the Equality Act 2010, should future academic problems arise.
As always, the reality is that the support offered by some Higher Education Institutions is wholly deficient. It is not uncommon, for those charged with supporting students, can sometimes lack the basic understanding and empathy towards mental health problems.
As we pay more for our education, we rightly expect a better service in return. I have seen an influx in cases from students who are being left without sufficient support from their Universities to help them manage both their mental health and their studies. I have become increasingly dismayed by the attitudes of various Higher Education Institutions towards offering support. Universities are trying to hold students more accountable for accessing support, but in some instances, Universities can completely fail to understand that for some mental health problems this is simply not possible. The quality of training and understanding of mental health issues among staff is also an obstacle, preventing sufficient support from being accessed by students. I have seen some worrying attitudes and expectations amongst staff.
The University need to understand their obligations under the Equality Act 2010. Once on notice of a condition protected under the Act, there is an anticipatory duty upon the University. The University need to understand that they are legally obligated to support such students.
With the increase in the number of students suffering from mental health issues the Universities approach and attitude needs to change towards a more proactive supportive environment.
I have recently achieved some very positive outcomes for clients with ongoing mental health issues. In one case a student is being allowed to repeat their second year in the hope of achieving better results with the right academic support in place. In another case, a student awarded a Higher Education Diploma, is being allowed to return to complete their final year and have the chance of graduating with a degree. We have even managed to ensure a student’s return to their nursing degree following a second allegation of plagiarism. In all cases, underlying mental health issues were a dominant factor.
Stand Up For Your Rights
The Higher Education Law Specialist at Charles and Co Solicitors, Sukhvir Gill, has noticed an increasing trend in matters relating to University Fitness to Practise processes, in that students are not always getting a fair opportunity to test the evidence against them. Without good legal representation a number of students are being withdrawn from Universities, despite incomplete evidence being presented, no witnesses being called and no opportunity for the student to examine the word of others.
This is not a fair process and more needs to be done to ensure that University Fitness Practise Policies are in line with those of the professional bodies that have delegated their power to the Higher Education Institutions.
Not every student instructs a Solicitor early on, primarily because a number of Universities advise against it. A number of students try and handle the situation themselves, but when you think that a whole team behind the scenes at the University are collaborating and working together to present a case against a student, the odds are really stacked against the lone student. Also, once a fully qualified member of your professional body, you would seek out legal support if you were up before a disciplinary or Fitness to Practise Panel. It should be the same for students and they should be actively advised of their right to have legal assistance by the Universities.
At Charles and Co our Higher Education Law Specialist represents students on a variety of professional degree courses that are governed by a professional body and subject to Fitness to Practise Regulations. We have successfully defended students in such cases and have ensured that students continue on with their course and graduate to join their chosen profession.
Our Higher Education Law Specialist has also recently had a high proportion of postgraduate clients, particularly those trying to achieve a PhD. Supervision is key and without good quality supervision a student’s progress can be seriously hindered. However, we also recognise that many students are working within a small community of Professors and experts and do not want to draw attention to themselves by being perceived as difficult. Often students will put up with poor quality supervision and limited research facilities until it’s all too late.
More and more PhD students have become disappointed with the level of support and backing from either their supervisor, or the Faculty, or in the worst cases both. It has been really hard to shift the mind-set that speaking up, in a well-articulated manner, will not necessarily jeopardise your positon within the Faculty.
We have also been astounded by the deliberate and blatant disregard some Faculties have towards University Regulations. It would be prudent to go through the Faculty Regulations governing your PhD, Master, MPhil and cross-referencing what is says should be happening versus what is actually happening.
When you think about the levels of fees involved in this area of study, not to mention time put into research, it is important that you do not let uneasy matters ride along for years, whilst the University rack up the fees.
There are always policies and procedures in place; it is just getting the University to follow them that can be the issue. We cannot stress enough the importance of a student feeling empowered enough to challenge the University if things just are not as you would expect. Universities are amenable to our involvement because it helps create that barrier to get things fixed for the better of all involved. In most cases Universities do actually want students to be successful in their academic progression, they want you to be able to tell others about what a great University they are if nothing else.
Fitness to Practise – A Fair Hearing?
Anyone who has ever been involved in the Fitness to Practise (FTP) process will know just how serious and stressful it can be. It is not something to be taken lightly, and whereas in the professional arena there is no doubt that anyone subjected to the process would require and warrant qualified legal representation, it would seem that for students facing the same in the University setting, the automatic right to legal representation is just not there.
Representing students on a daily basis on a number of issues, I have often come across having to justify to Higher Education Institutions why a student should be allowed legal representation, not only at the hearing, but during the investigation stage too. That cannot be right or fair?
FTP is something that hangs over all medical, dental, social work, nursing and midwifery students, to name a few, throughout their studies. I have been involved in cases for all types of students and it never ceases to amaze me the level of inequality some students have had to endure before they even reach me.
The basic principles of a fair trial, underpinned by Article 6 of the Human Rights Act 1998, appear to be of no concern to many a University FTP Panel.
I have a number of FTP cases at present, all at different stages of the process. It goes without saying that being instructed from the outset of the matter, is always best. You get to navigate the case from the start and prevent any missteps on the part of the client. You get to keep a watchful eye on the University and I also find that once the University know they are being watched, their efforts to be fair are that much greater. Of course not all students can afford qualified legal representation, and some are put off getting legal help by either the University or even the Student Union. It is suggested to students that if you get legal help 1) you have something to hide and 2) you will be treated much harsher. Not true.
Not every student instructs early on, a number try and handle the situation themselves, but when you think that a whole team behind the scenes at the University are collaborating and working together to get you out, the odds are really stacked against the lone student.
I have a case at present where the student has been through the whole process alone, including the appeal stage. The University took in excess of six months to investigate the case and then gave the student a mere 10 working days to submit their statement and evidence, sound fair? The University provided no signed witness statements and produced no witnesses at the FTP Hearing itself. This did not seem to perturb the FTP Panel, who despite not hearing a shred of evidence, found the student unfit and withdrew them from the course.
Universities have to accept, whereas it may not be a court of law, FTPs are quasi-legal proceedings, the outcomes of which fundamentally impact the students’ career and future life trajectory. Findings cannot be made without the basic legal principles, as embodied by Article 6, being adhered to.
Full and Frank disclosure v Second bite of cherry…
The relationship between a Solicitor and their client involves a large amount of trust between the two and the onus is on the client to be completely honest. The duty of full and frank disclosure is paramount and continues throughout the course of the proceedings. It would be impossible for a Solicitor to advise a client of any realistic outcomes in a particular case if that client is withholding valuable information which can change the course of the case. As can be seen below failure provide full and frank disclosure can lead to concluded/clean break agreements being overturned (albeit highly specialist advice will be required to consider merits in each individual case in a timely fashion).
Two landmark cases in recent years reiterate this point; Gohil v Gohil [2015] UKSC 61 and Sharland v Sharland [2015] UKSC 60. The former is a case whereby a settlement was reached at a Financial Dispute Resolution hearing between the parties on the basis of the disclosure given at the time of that hearing. The Applicant Wife was keen to resolve this matter to achieve finality, and in doing so she agreed to a recital being placed within the order to the effect that she believes that her husband had not provided full and frank disclosure but yet she agrees to the terms of the order regardless.
What could not have been foreseen is the extent to which the husband had attempted to mislead the Court by not providing full disclosure of his assets and financial situation. The Judge in this case had in fact sided with the Applicant Wife in allowing her to set aside the original consent order. Whilst the Judge did use evidence which was inadmissible when making his decision, it was decided in the Judgement of Lord Wilson that the overriding objective was fairness and therefore the decision of the Court of Appeal was overturned. Lord Wilson stated that ‘even if he had referred only to the evidence admissible before him, Moylan J would still properly have found the husband to be guilty of material non-disclosure’.
This notion of ensuring that a party receives a fair outcome is further evident in the case of Sharland v Sharland. This case involved a Husband who held a substantial shareholding in a software business. There was a dispute over the value of the business (and therefore the true value of the Husband’s share within the business, and both parties obtained their own expert valuations which valued the company at a price far lower than previously thought. An agreement was reached on the basis of those expert valuations and Husband had argued that it was difficult to know when his shares can be realised, as he did not have an exit strategy in place.
However, whilst an agreement was reached there was no sealed Order. During this time, an article appeared in the news stating that the Husband’s business was being prepared for an IPO (Initial Public Offering) and the value of the company was expected to be between £600-900 million more than previously thought. The matter was listed for a further hearing regarding Husband’s material non-disclosure. When Husband gave his affidavit in response to this matter, he exhibited materials which damaged his case and were proof that an IPO was well underway.
The Judge at this hearing stated that the Husband had been ‘misleading’ and ‘dishonest’, and further, his entire credibility in this case had been jeopardised. Whilst Husband tried to argue that the new material did not make a difference to the agreement which had been reached, it was agreed that had the Judge at the time of the initial hearing discovered the news he would not have consented to such an Order being made.
The issue of non-disclosure will continue to be debated. However, Lord Brandon summarised this matter best when commenting on Robinson v Robinson (Practice Note) [1982] 1 WLR 786, whereby he stated that not every failure to make full and frank disclosure will mean an Order can be set aside, but ‘only in cases where the absence of full and frank disclosure has led to the Court making…an order which is substantially different from the Order it would have made if such disclosure had taken place’.
Let sleeping dogs lie v Finality on Divorce?
One of the most important parts of any divorce is resolving the matrimonial finances. The court will usually hope to achieve a clean break between the couple, which means that neither party can make any further financial claims against the other in regards to the marriage, howsoever arising once decree absolute has been pronounced. This is recorded on paperwork and must be endorsed by the court for it to be legally binding.
This requirement is even more significant in light of the recent divorce case which hit the headlines when an ex wife was allowed to bring a claim for financial support, 23 years after the parties divorced. In this case the parties divorced when they were 22 years old after two years of marriage and neither party had any assets. The husband then founded the green energy company Ecotricity, and made a fortune, estimated to be in the region of £57 million.
This ruling has sent shivers up the spines of many divorcees and has sparked an outraged response from lawyers, some of whom fear the courts will be clogged with cases of former spouses demanding money even when there is little merit to their claims.
Although it seems illogical, the wife was able to bring this claim as neither of the parties were able to produce any formal court document concluding and dismissing the financial relief claims by way of a “clean break”.
If such a document does not exist, then of course the former spouse bringing the claim must convince the judge that such an order is “reasonable and fair” taking into account all the factors the court must consider before making an order. This will of course be considered in light of, particularly the case in the headlines, the short duration of the marriage, the long delay and whether her financial needs were generated by her relationship with her former spouse.
This case highlights the problem with not arriving at a financial settlement – even when there were no assets – leaving open the possibility for one or other spouse to make a claim in the future. It must also be noted that there is no maximum period or “time bar” after which claims cannot be brought before a court. Consequently, careful consideration must be given when the splitting couples are young and have potentially lucrative careers ahead of them.
Therefore, if you are separating from your partner, do not hesitate to contact the Head of our Matrimonial Finance Team, Gurjit Chahal who will deal with your divorce in the best way possible to ensure all paperwork is properly completed to allow you to move on with your life, no matter what the circumstances are at the time of the divorce.
Gurjit Chahal
Family Law Specialist
Oral Exams and Extra Time
Recently I was representing a medical student who had been excluded from Medical School for failure to progress.
The student in question had a disability and as per the disability was entitled to extra time during examinations. The extra time had been implemented during written components of the exams, however no adjustments to timings were made for the oral component of the exams (known as the OSCE).
In a number of Medical Schools across the country no allowance for extra time have been made for disabled students in the OSCEs. I have come across varying reasons from logistically it is impossible (I am not sure how the Equality Act 2010 would review that reason), to the standard being tested is such that a medical student needs to be able to review a patient in a set timeframe and that is the standard being examined.
I do not know about you, but I would not mind my Doctor taking their time to take a history of my medical condition and making a fully informed diagnosis of my condition. I know there will be times when snap decisions will need to be made (A&E maybe??), but in those such circumstances it is unlikely that the decision would be made by someone in isolation without input from others.
Legally the purpose of the Equality Act is to place all students on an equal footing. By virtue of the Act disabled students are often allowed some form of reasonable adjustment during exams to ensure that they are assessed fairly and equally to those without disabilities. If you are not going to allow a disabled student a reasonable adjustment then you need to demonstrate that there is a legitimate aim for not allowing the adjustment (in this case extra time during OSCEs). Usually the legitimate aim to not allow an adjustment would be meeting the standard and/or maintaining academic standard, however the way of achieving this still needs to be proportionate and by that we mean appropriate and necessary. The part Medical Schools often forget to assess is the adverse impact on disabled medical students if they do not allow the extra time for OSCEs. Typically OSCEs are there to examine a medical student’s ability to take a full history, diagnose and then to present their findings.
I was only recently at a Medical School hearing where I was advised by the Medical School that to overcome the issue of extra time the Medical School were now allowing for 10 minutes per station as oppose to the usual 8 minutes for allstudents. Not sure that is in fitting with placing disabled and non-disabled students on an equal footing… I must say I am a little perplexed with this resolution to the issue.
I have found I am arguing this area with more and more effective results.
University Fees… Value for Money?
As the first cohort of students who had to pay £9,000 per year in University fees graduate this year, I wonder how they found their University experience, was it value for money? Are they more consumer savvy?
The fees certainly have not impacted the numbers applying for places at Universities, as was initially predicted. However, with fees now at an all-time high it comes as no surprise that students are seeing their relationship with the University in more commercial terms. Students are becoming increasingly confident about voicing their concerns when things do not appear to a standard they would expect. Students are now seeing their relationship with their University as more of a contractual relationship. In truth it always was a contractual relationship, however by previously not being involved in the financial aspect of the transaction, students were less inclined to see the contractual element of their relationship with the University.
Read more on our HIgher Education law Solicitors Blog
The Office of the Independent Adjudicators Stats for 2014
The OIA received a total of 2,175 cases –
- 200 students received pay-outs as a result of OIA intervention
- 59% of Complaints to the OIA were unjustified
- 14% were considered ineligible
- 5% were withdrawn
- Approximately 23% of cases were justified or partly justified
- Approximately 500 students were successful in their cases to the OIA
Financial compensation awarded by the OIA reached almost £400,000 which if averaged out amongst the 500 successful students comes to £800
The numbers are interesting and show that there has been an increase in the number of cases that have been found justified, or partly justified since 2012, when the figure was nearly as low as 4%…
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