Higher Education update – Autumn 2024

As we enter a new academic year, our specialists highlight and summarise key developments affecting the Higher Education sector, including:

• The Office for Students’ “Business plan 2024-25” – could this signal a more interventionist approach?
• The now “paused” Higher Education (Freedom of Speech) Act 2023.
• Wide-ranging employment law reforms.
• The Government’s proposals to tackle abuse within the Student and Graduate visa routes.
• Guidance for universities following a High Court decision involving discrimination on the grounds of disability.
  
  

Independent Review and 2024-5 Business Plan

The end of July and start of August saw a flurry of regulatory publications. Fit for the Future: Higher Education Regulation towards 2035 made 32 recommendations across areas including governance, independence, accountability and efficiency. In doing so it reiterated many now familiar themes about the OfS's expanding responsibilities diluting focus on its core objectives, as well as providing constructive feedback on its approach to student engagement and general levels of transparency and consistency in its dealings with the sector.

The Review was led by Sir David Behan, who has now been appointed to chair the OfS on an interim basis. Perhaps unsurprisingly, the 2024-25 Business Plan published shortly after the Review carries across a number (though not all) of its recommendations, including plans to consult on new conditions of registration regarding consumer protection and management and governance, as well as implementing a new condition of registration to tackle harassment and sexual misconduct (more on this below). With warnings about the financial health of the sector dominating the headlines, the Business Plan appears to go further than the Review in signalling a more interventionist approach in this area, promising more active engagement with providers at risk of exiting the market and intervention to protect the interests of students in cases of likely provider closure. It remains to be seen what form any intervention might take, and whether the coming year will see an uptick in providers exploring options for restructuring in the face of continuing financial headwinds.

Freedom of speech legislation paused

As many of you will have seen, the Government has paused the implementation of the Higher Education (Freedom of Speech) Act 2023, the main provisions of which were due to come into force on 1 August. This means that existing freedom of speech and academic freedom laws remain in place complemented by the existing conditions of registration. Universities who worked to update their policies and procedures to get ready for 1 August will need to assess whether it is better to use those updated policies and procedures or whether it is better to keep existing policies and procedures in place. At the very least, there is no requirement for universities to operate a freedom of speech complaints scheme and no risk of a claim under the new statutory tort. We are monitoring developments and will publish further updates when the Government confirms next steps. In the meantime, please do be in touch if you require advice on how to proceed whilst the “pause” remains in place.

Employment law reform

The Labour Government has promised the most wide-ranging employment law reforms in decades. In recent blogs (here and here) we considered the full range of proposals included in the King’s Speech, as well as looking behind the headlines on two of the proposals (the right to switch off and making flexible working the default). As some of the largest employers in the country, almost all of these proposals will have some impact on universities, though some will undoubtedly be felt in the sector more than others. After a resurgence of industrial action on campuses in recent years, universities might be particularly interested in Labour’s plan to reform restrictions on trade unions, including increased rights for unions to access the workplace for recruitment and organising purposes.

Any employment law reforms will take time to work their way through the legislative system, so will not be sprung upon universities at short notice. That said, we encourage early and proactive planning. It is unlikely to be realistic to adopt the “standard” approach to implementation of legal updates that you have applied in recent years, given the sheer volume and range of changes on the cards. HR teams will need appropriate time and resources to understand and implement the changes in universities. Some preparatory work could be done now and in the months ahead, perhaps by a dedicated working group, to map out the policy areas affected and any specific red flags or risks, as well as to identify those who will be responsible for the changes in each policy area.

Student visa regulations

In a Written Statement to Parliament earlier this year, the Home Secretary set out the new Government's “different approach” to legal migration to the UK, noting that the Government intends to “link migration policy and visa controls to skills and labour market policies so immigration is not used as an alternative to training or tackling workforce problems” in the UK. She also confirmed that a number of immigration measures introduced by the previous Government earlier this year will continue to be implemented, including restrictions on the majority of overseas students bringing their family members to the UK. The impact of these measures is reflected in recent figures released by the Home Office, which show that student visa applications were 16 per cent lower compared to the same time period last year, together with a sharp drop of 81 per cent in applications for family members.

Bridget Phillipson, the Secretary of State for Education, reassured the HE sector that the Government will ensure the Graduate route is maintained and noted that “international students are welcome in the UK”. We understand that the Government also intends to follow through on proposals to tackle abuse within the Student and Graduate visa routes, which include stricter regulation of visa agents involved in international student recruitment, raising financial maintenance requirements, and tougher compliance standards for student licence holders. There has been a marked increase in immigration enforcement actions (see our article on immigration compliance) for licence holders in the first quarter of this year and we expect this trend to continue under the new Labour Government.

EHRC Guidance

We have previously reported on the High Court decision in the case of Natasha Abrahart, in which it was found that the University of Bristol had discriminated against her on the grounds of disability (see our previous article). The Equality and Humans Right Commission (EHRC) has recently issued an advice note for the higher education sector in response to that judgment. At numbered points 10-25 of the advice note, the EHRC sets out “what we think compliance with the law looks like now”. This is not statutory guidance which universities are obliged to follow. Nonetheless, this is a useful list against which universities can stress test their current policies and practice in relation to students who are or may be disabled.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2024