Higher Education Today – June 2023

Welcome to the summer 2023 edition of Higher Education Today, looking at current topics and questions facing higher education.

In each edition we feature content from key members of our Higher Education legal and regulatory team. If you would like further details about these individuals or information about the wider Higher Education team please see our Higher Education brochure.

Following on from our #WednesdayWebinar series in March 2023 we are delighted that in this edition some of the presenters have shared their thoughts and follow-ups with HE Today.

We hope you find the newsletter interesting and helpful.

Virginia and Ashley
Joint Department Heads for Higher Education

Dealing with allegations of sexual misconduct involving students: AB v. XYZ

In our March webinar about student misconduct, we discussed the significant issues faced by higher and further education providers when allegations of sexual misconduct involving students are made. We examined the OfS’s consultation on a potential new approach to regulating harassment and sexual misconduct for English higher education providers, including a new condition of registration. That consultation launched in February 2023, and closed on 4 May 2023. The OfS is currently considering responses to the consultation and has said that it will aim to publish a summary of responses and its decisions later in 2023. We will, of course. be tracking the outcome of the consultation and what it will mean for higher education providers carefully.

Looking specifically at recent a case of sexual misconduct involving students, on 16 May 2023, the High Court handed down judgment in the case of AB v. XYZ. The Claimant had been the subject of University disciplinary proceedings following the making of serious sexual misconduct allegations against him by a student from a different University. The Claimant was expelled following the disciplinary proceedings and brought private law proceedings against the University for breach of contract on the basis that the relevant University regulations provided that the disciplinary committee had to comply with principles of “natural justice”.

The Claimant had previously brought proceedings against the University, with judgment handed down in 2020. The 2020 judgment related to the right to legal representation, in circumstances where the Claimant had been refused such representation. The High Court said that even if there had not been an express provision that the disciplinary committee must comply with natural justice, there would be an implied contractual term that the disciplinary process be fair. In the 2020 judgment, the Court made the following observations:

• the standards of procedural fairness applicable in the context of disciplinary proceedings are no different to those applicable in a public law context;
• there was no right to representation simply because disciplinary proceedings were afoot. However, in individual cases, fairness may require legal representation;
• procedural fairness is a flexible concept that takes account of matters such as the sense of injustice that a person will feel if an unfair procedure is adopted;
• it was wrong for the University to have proceeded on the basis that there were no circumstances in which representation would be permitted;
• the best guidance on the factors to be taken into account when deciding whether legal representation is required in a particular case is as set out in R Secretary of State for the Home Department Ex P. Tarrant [1985] QB 251; and
• from the perspective of natural justice, it was important that the complainant was questioned on behalf of the Claimant as there was a need for her evidence to be tested.

The outcome of the 2020 judgment was that the Court ordered a further disciplinary hearing to be held, with the Claimant being permitted legal representation. A second disciplinary hearing was convened. However, the complainant did not attend on the basis that she felt unable to do so. The hearing proceeded without the complainant. The Claimant attended the hearing with his legal representative and the allegation against him was upheld. The Claimant appealed, but his appeal was turned down. The Claimant then issued further private law proceedings (which are the subject of the 2023 judgment), saying that the University had to act in a way that was not Wednesbury unreasonable and had to make a decision that was fair and complied with the rules of natural justice.

The Claimant argued that absent the complainant, the evidence against the Claimant amounted to hearsay, which was inadmissible in the circumstances of the case. The Court was concerned with whether the disciplinary committee could receive the hearsay evidence and give it such weight as it thought fit. This turned on the express or implied obligation to conduct the disciplinary proceedings in accordance with natural justice. As the Court put it: “Was it a breach of natural justice in circumstances where the Complainant did not attend for the second Disciplinary Committee to admit the hearsay evidence and/or to attach sufficient weight to the same to find the allegation proven?”

The University said there was no rule of law preventing a disciplinary body from admitting such evidence. The University said the disciplinary committee had taken into account:

• the attempts to get the complainant to attend;
• the reason given for non-attendance (not wanting to re-live what had happened to her again);
• the attempts and the reason had in the view of the disciplinary committee been reasonable; and
• it considered the detailed submissions on behalf of the Claimant and kept them in mind in its decision.

In discussing the issues, the Court noted that in the 2020 judgment, the assumption when considering the right to legal representation was that this included the right to provide questions to be asked of the complainant. The Court found that the second disciplinary committee did not give proper or adequate consideration to the question of admissibility. The Court said that it was necessary for the second disciplinary committee to consider whether it could still be fair and reasonable to admit the hearsay evidence of the complainant when it could not be tested. The Court did not consider that the second disciplinary committee had properly considered this question. The Court said that there are cases on their own facts where hearsay evidence should be rejected altogether as inadmissible since fairness cannot be achieved by its admission. The Court considered that the University’s approach had the effect that the hearsay was admitted subject to the weight to be attributed to the statements instead of giving anxious consideration as to whether justice could be done by admitting the statements at all if they could not be tested. The Court’s view was that this was a case where the evidence of the Claimant fundamentally contradicted the evidence of the complainant, and where it was essential as a matter of fairness to have an opportunity to test it.

The Court concluded that in breach of contract and contrary to natural justice, and in a manner which was Wednesbury unreasonable, the second Disciplinary Committee:

• admitted hearsay evidence when it was unfair and unreasonable to do so; and
• gave weight or disproportionate weight to the account of the complainant, even finding that her untested evidence was "honest and cogent".

This meant that the decisions made were of no effect.

Finally, the Court observed that even where there is a good reason for non-attendance of a complainant, there may be cases where it still cannot be fair and reasonable to admit the evidence without the opportunity to question the individual. The Court said that in the circumstances of the case, it would not have been fair and reasonable to rely on the complainant’s evidence without having the opportunity to test her evidence by cross-examination. In any event, the Court was also not satisfied that a good reason for non-attendance had been established in this case. It is of note that the Court relied on the fact that there was no evidence that the complainant had been offered her own legal representative.

It is generally accepted that public law principles apply to decision making in this context, and this case highlights that the Courts may well be prepared to import those principles into the contractual relationship between students and institutions via implied terms. The case is also a helpful reminder that it is necessary to assess the approach to legal representation and hearsay evidence extremely carefully and with specific regard to the facts of each individual case.

For more information about student related matters, please contact Amy Tschobotko, Partner.