University students of “the COVID-19 era” are having a university experience like never before, with a whole host of challenges to deal with – from getting to grips with remote learning, to making and maintaining friendships whilst complying with social distancing rules. In this article we ask ourselves some timely questions about the duties and responsibilities owed by universities to their students in terms of their mental and physical wellbeing, the legal risks that might arise from a failure to meet these duties and the practical measures universities can take in the Covid-context to support students and meet their obligations. Whilst our focus is on remote learning, the same broad principles apply in “normal” circumstances.
To what extent are organisations responsible for the mental and physical wellbeing of students who are working remotely?
Universities do have some legal responsibility for student wellbeing, but that responsibility is limited compared to (for example) the equivalent duties owed to residential pupils at a boarding school. Universities owe all their students duties arising from the student contract and they have a general duty of care. They also have specific statutory responsibilities towards U18 students and disabled students. Thinking about those different areas in a bit more detail:
In terms of contractual duties, the most obvious elements of the student contract are the fees paid by the student and the provision of education by the institution; however, typical student contracts contain numerous other provisions. Some student contracts have provisions relating to health and wellbeing, for example we have come across one which refers to the university offering “extensive pastoral support such as support for learning and for your health and welfare” and another to the university using its reasonable efforts to provide appropriate access to pastoral support.
2. Duty of care:
The nature and extent of a university’s duty of care towards students is a hot topic. On the one hand, it is clear that universities aren’t just “big schools” and that university students are, and are expected to be, much more independent that school pupils. Nevertheless, in recent years there has been a lot of attention on the extent of universities’ duty of care, particularly in light of the tragic background of student suicides. Inevitably questions have been asked about whether the university could and should have done more.
The standard view is that universities do have a general duty of care towards their students, but that this is a much lower standard compared to other residential educational settings such as a boarding school. Having a duty of care means that universities must take reasonable steps to protect students from foreseeable harm (both physical and mental). In the Department for Education’s Covid Guidance for Higher Education, the DfE writes that higher education providers “have a duty of care to students when delivering services, including the provision of pastoral support, and taking steps to protect the health, safety and wellbeing of students. This includes responsibility to support students with mental health issues”. The duty of care which universities might owe to any student is a flexible, fact-driven concept, so the duty of care will be greater for students who are known to be less mature or more vulnerable. For example, arguably the duty of care would also be greater for students living in a hall of residence which has been “locked down” due to a Covid outbreak.
3. Under 18s - duty of care:
In the case of U18 students, universities’ duties are enhanced as they are regarded as children under UK law. "Working Together to Safeguard Children" is the key statutory guidance.
4. Students who are “disabled” within the meaning of the Equality Act 2010:
It is unlawful for universities to discriminate, whether directly or indirectly, against disabled students. They also have a duty to make reasonable adjustments to remove any disadvantage faced by these students. Disabilities include not just physical conditions but also some mental health issues. Particular care will need to be taken to consider the impact of studying from home on these students.
5. Public sector equality duty:
Universities are also subject to the public sector equality duty, so should consider how policies and practices implemented for the purposes of maintaining tuition through Covid might disproportionately impact students with protected characteristics.
What are the legal risks of providing inadequate support to students working remotely?
The risks arising from providing inadequate support range from internal student complaints, to legal claims, to reputational damage.
1. Student complaints:
Universities should have an internal student complaints procedure. We anticipate that many universities are seeing a rise in student complaints, as students are studying in such challenging circumstances and are unlikely to be having the university experience they were expecting. It is important that universities have effective student complaints procedures, which ensure that complaints are given a fair hearing, and which are ideally resolution-focussed to minimise the risk of complaints escalating. If students are unhappy, they can refer a complaint to the sector ombudsman – the Office of the Independent Adjudicator for Higher Education (OIA).
2. Legal claims:
In terms of legal claims, the risks are the flip side of the duties we referred to above:
- Breach of contract: If a university fails to meet the terms of its student contract, then a student might claim breach of contract. The most common remedy for breach of contract is damages, in other words a compensatory financial award. Many universities won’t have specific contractual commitments to provide pastoral support and, where they do, they tend to be relatively vague and high level, so it might be difficult for a student to advance this sort of claim.
- Negligence claim: A student could bring a negligence claim if they consider that a university has breached its duty of care owed to the student. Again, students would have a difficult task: first to define the scope of the university’s duty of care, before then identifying how they consider that has been breached.
- Equality Act 2010 claim: A student could argue that they have been disproportionately impacted by the university’s policies. Students considered "disabled" within the meaning of the Equality Act may claim that universities have failed to make reasonable adjustments. Depending on the facts, this may be an easier claim to advance than the two above.
3. Reputational damage:
Universities will always have potential reputational damage at the back of their mind. We have already seen a lot of press attention on the plight of students who have spent money on university accommodation only to find that their courses are being taught online, or who have been locked down in halls due to Covid outbreaks. I expect this is likely to continue and that universities who fail to put adequate pastoral support in place for students during this period might find themselves in an unwelcome spotlight.
What practical measures should universities take to support students during and post-Covid?
1. Government guidance:
Universities should of course keep an eye on the Covid-related government guidance, which is extensive and is regularly updated. It includes detail on matters such as: Covid-responsible social activities; transport; safe campuses; and international students.
2. Consider red flags for student wellbeing:
We would recommend that universities consider what “red flags” look like in their institution in a remote learning context. Previously lecturers and tutors might have regular face-to-face contact with students, enabling them to more easily notice signs of students who might be struggling. Universities are likely to need to take more proactive measures in a remote learning context, for example by ensuring that the university support services are well publicised to students, and by providing training to staff about spotting the signs of poor mental health.
3. Risk assessments:
Linked is that universities should ensure that risk assessments are conducted (for example for students studying from home, living in “locked down” halls of residence, or returning to campus) and that these are regularly reviewed and updated.
You might find it helpful to refer to the Higher Education Online Safeguarding Self-Review Tool produced by Professor Emma Bond and Professor Andy Phippen last year, which provides a toolkit for universities to self-assess their policy and practice around online safeguarding.
4. Policy review:
We are sure universities are already on top of this, but we would recommend that they review and update relevant policies to cater for new working practices. The main ones might be policies relating toacademic matters; equality, diversity and inclusion; safeguarding and wellbeing; disability support; and overseas students. The support available to students from the university should be signposted to students prominently in relevant policies, as well as around campus such as in halls of residence or canteens. Of course – it is important to actually do what your policy says!
5. Support your staff:
Staff can’t support students if they don’t feel supported themselves – there should be a "whole institution" approach.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, December 2020