Education e-briefing - The Student Contract: "CMA" Implications for Responding to Allegations of Sexual Assault

• United Kingdom

• Education - Briefings

25-07-2017

Welcome to the tenth 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 for responding to allegations of sexual assault.

The issue of how institutions should respond to allegations of sexual assault affecting students (such as where a student discloses that they have been the subject of an assault or a student is alleged to have perpetrated an assault) has long been a difficult legal and practical issue for institutions to manage, particularly in relation to the interplay between internal institutional regulations and the criminal law.

The area has been the focus of recent consideration by the Universities UK Taskforce which was established to examine violence against women, harassment and hate crime affecting university students and formed the subject of the Taskforce’s Report Changing the Culture, published in October 2016.

The potential consequences for institutions and students alike of failing to deal with allegations of sexual assault fairly and lawfully can potentially be significant including causing distress and exposing institutions to complaint, legal claim and reputational damage.

Whilst other legal issues also arise, key points arising from a student contract and consumer law perspective include that codes of conduct, policies and procedures should:

• set out clearly and in plain English the conduct obligations on students and the powers of the institution to take disciplinary or other action and impose sanctions in particular matters (with relevant rights of student appeal);
• be properly incorporated into the student contract by referring to them expressly in relevant student contract documents (such as the student terms and conditions and offer letter); and
• be brought to the express attention of students before the student contract is made (i.e. generally before students accept offers of places on courses).

Informing students at enrolment, in freshers’ week or at induction what standards of conduct are required of them, and what the consequences (including expulsion) of failure to comply with those requirements may be, is likely to be too late and may mean that the institution has no legal power to take action against a student for suspected breach.

In addition, institutional powers such as suspension and expulsion are likely to be regarded as surprising or onerous terms under consumer law and must therefore (in order to be lawful and enforceable) be brought explicitly to students’ attention, together with an explanation of when such powers may be exercised, before the student contract is entered into.

Crucially also, the requirements of students and the powers of the institution under the student contract should align with those under the student accommodation contract.

Institutions may wish to review their arrangements for bringing such information to the attention of students and consider whether the contents of that information is clearly and lawfully drafted.

Next time - The Student Contract: “CMA” Implications of Industrial Action

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.