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The Student Contract: “CMA” Implications of Industrial Action

  • United Kingdom
  • Education - Briefings

08-08-2017

Welcome to the eleventh in our series of fortnightly Student Contract: ''CMA'' Implications ebriefs for universities, colleges and private providers. These ebriefs highlight aspects of the application of consumer law to the student contract which pose challenges for the tertiary education sector.

This time we focus on the implications of industrial action.

The consequences of actual or threatened industrial action by an institution’s staff (such as the cancellation of lectures, non-marking of assessments or non-availability of pastoral support), or the withdrawal of cleaning or other support services provided by a private organisation with which the institution contracts, can have the potential significantly to affect service provision promised to students under the student contract. This exposes institutions to the risk of being in breach of their contractual obligations to students and thereby to potential complaints, court claims, regulatory intervention and reputational damage.

There are a range of practical measures which institutions may consider in seeking to minimise the impact on students of industrial action, including early communications with students to manage their expectations and ensuring that robust contingency planning is in place to seek to remove or reduce the disruption which students might otherwise face.

In respect of forward planning, institutions may wish to review the provisions of their standard student terms and conditions dealing with interruptions or changes to services delivered to students including whether the scope and robustness of disclaimers, force majeure and variation clauses are likely to withstand the test of consumer fairness if scrutinised. Attempts to limit liability for failure to deliver services due to events that are perceived ultimately to be within an institution’s control, which may include staff absences in some circumstances, are likely to be more susceptible to challenge under the fairness test.

Updating terms and conditions, disclaimers, force majeure and variation clauses before any action is taken offers the best opportunity to ensure that such terms are robustly drafted and provide as much protection as possible for institutions in the event of having to manage service delivery promises to students in the face of industrial action.

Next time - The Student Contract: “CMA” Implications of a System-Wide Introduction of Improved Student Contracts

Eversheds Sutherland has a wealth of experience advising on student contract / “CMA”-related issues in the HE and FE sectors. If you would like to discuss how Eversheds Sutherland may assist you in managing any of the issues addressed above (or any other student contract/consumer related issues) please contact Siân Jones-Davies or Eve England.

 

 

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