Education update

University regulations vary greatly with respect to a student's ability to be legally represented at internal hearings, from express provision to express prohibition. This means that, more often than not, students do not have a contractual right to legal representation at internal hearings.

Recent cases in the employment sphere have provided some guidance on the question of whether there is an implied right to legal representation at internal disciplinary hearings through article 6(1) of the European Convention of Human Rights, which, as a consequence of the Human Rights Act 1998, universities as public bodies must comply with.

In Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789, the Court of Appeal considered that if an NHS employer refused to grant representation in a case which engaged article 6, the refusal would be unlawful. The judgment indicated that article 6 is engaged where an adverse finding would have a 'potentially grave effect' on the doctor's ability to practise his profession.

In Hameed v Central Manchester University Hospitals NHS Foundation Trust [2010] EWHC 2009 (QB), a staff grade ophthalmologist was dismissed for gross misconduct. The High Court addressed the question of whether article 6 was engaged in the trust's disciplinary proceedings. The court did not accept that Dr Hameed's dismissal would have the same effect as Dr Kulkarni's because the disciplinary proceedings did not have the effect of determining her right to practise as a doctor. The only right that was determined was her right to practise as a staff grade ophthalmologist for the defendant trust. Therefore, in ordinary disciplinary proceedings, where all that is at stake is the loss of a specific job, article 6 would not be engaged.

In June 2011, R (G) v The Governors of X School [2011] UKSC 30 was thrown into the mix of cases. This case involved a teaching assistant at a school who was dismissed following an allegation that he had begun to cultivate a relationship with a vulnerable child. It was accepted, that, if dismissing him, the school would be required to refer him for consideration for listing on the 'List 99' (a list of those unsuitable to work with children under the Education Act 2002). Both the High Court and Court of Appeal held that article 6 applied to the school's internal disciplinary proceedings because it could have 'substantial influence or effect' on the Independent Safeguarding Authority's (ISA) decision as to whether to put the teaching assistant's name on the List 99. However, the Supreme Court reversed these decisions. Although accepting that article 6 could sometimes apply in cases where the decision would have a substantial influence or effect, the Supreme Court, having particular regard to the fact that a) the ISA was a separate body, subject to its own investigation and could exercise its own independent judgment in the decision-making process; and b) the ISA's decision would be open to an appeal to the Upper Tribunal, stated that this test was significantly narrower than previously understood.

So, there is no certainty as to when the right to legal representation will be triggered in internal disciplinary proceedings. However, a pattern does seem to be emerging which suggests that the right would arise if it can be said that the charges the student is facing are serious and that the internal proceedings will potentially or substantially influence the student's right to practise his or her profession.

Furthermore, irrespective of whether article 6 is engaged, the principles of natural justice also require that an individual must be given the opportunity to present their case when certain interests and rights may be adversely affected by a decision. This requirement would also depend on the circumstances of the case including the seriousness of the impact on the individual's rights. As a consequence, the simple rules of fairness may naturally require the internal proceedings to allow an individual to be legally represented. This argument carries more weight especially in relation to an individual with a disability which impacts on their ability to present their case. In these circumstances, it is arguable that the student requires legal representation as a reasonable adjustment in response to their disability.

There can be serious consequences for students facing allegations questioning their fitness to practise their chosen profession, and, accordingly, their suitability to remain on or be able to register on their chosen profession's register. For example, a sanction that can be imposed is expulsion from the course. Naturally, a university cannot bar a student from completing the course at another university; however, each institution would undertake due diligence checks on a student and information regarding fitness to practise actions would be disclosed. Therefore, the chances of the student getting on the same course at another university would be limited. Moreover, expulsion may lead to a referral to the professional regulating body, which means the student could be prevented from practising their chosen profession.

As with the ISA, any issues relating to barring a student from professional practice would be a matter for the regulatory body and the decision of the university would not be binding on it. However, it is clear that the university's decision could not be ignored by the regulatory body, and would be more than a minor consideration that would, no doubt, serve to be a form of irreversible prejudice in the decision-making process.

Although expulsion is not always the response to an adverse finding at a fitness to practise hearing, and, therefore, a referral to the regulatory body is not automatic, it can be argued that if the allegations are serious and expulsion is a likely option, legal representation should be permitted because of the drastic consequences.

Again, as in R (G), a student will have a further right to make representations against the decision of a fitness to practise panel through an appeal. However, because of the potential effect on the student's career prospects, shouldn't matters be dealt with as soon as possible and in the best way possible, i.e. at the first instance with legal representation? This contention becomes even more persuasive in the wake of the increasing competitive nature of the employment market, in which the ability to complete one's course to enter a profession is even more important.

Independence of the OIA

There have been, and continue to be, many questions surrounding the adequacy of the Office of the Independent Adjudicator for Higher Education (OIA) in terms of the remedies it is able to provide students; the amount of time it takes for a complaint to be investigated; and, more recently, the independence of the OIA has been questioned again. This latter question can now be considered to be resolved by The Queen on the Application of Sandhar v Office of the Independent Adjudicator for Higher Education and another [2011] ECWA Civ 1614 in which the Court of Appeal dismissed a challenge of impartiality of the independent adjudicator.

The claimant, a medical student, failed two papers in his final year exams. He re-sat the papers because of the acceptance of mitigating circumstances but failed both again. Consequently, he was excluded from his degree course. The claimant complained to the OIA, requesting an emergency remedy and procedures. The OIA declined to agree to every emergency procedural route he sought to invoke. The claimant thus judicially reviewed the OIA on the basis that, as it was funded by the university, it could not avoid the appearance of bias.

The Court of Appeal found that the adjudicator had an express duty to act independently of the OIA directors, who themselves had a duty to uphold the independence of the adjudicator. The court concluded that the funding from the Higher Education Institutions (HEI) went into a central pot, and that no individual case handler could be said to be paid by any one institution. Moreover, it was found that there was no evidence of any link between the level of contributions and the success rate of complaints. Accordingly, it was held that the 'well informed and fair minded observer' (Magill v Porter [2001] UKHL 67) would not agree with the appearance of bias on the part of the independent adjudicator. This was especially in light of the fact that parliament had envisaged that the OIA was to be funded by HEIs (section 15(3) of the Higher Education Act 2004).

Disability discrimination

The judgment in R (Shelly Maxwell) v The Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1236 in the Court of Appeal has raised some interesting questions about the practical aspects of how a student can secure an adequate remedy in cases involving disability discrimination.

The lack of a student's ability to secure a finding of disability discrimination from the OIA may shift the burden on HEI's internal procedures to make these findings. Otherwise, there would be no other option but for the student to take the HEI through county court proceedings. This would be time consuming, costly, emotionally all consuming '“ and would invite unwanted publicity for the HEI.

The judgment also leaves open the question of whether the OIA can be regarded as an 'alternative remedy' before initiating litigation in disability discrimination cases. If the alleged disability discrimination has, for example, lead to the student's failure of a course, the student will have no option but to go straight from the HEI's internal procedures to judicially reviewing the HEI's decision. This is something that the courts have always been reluctant to permit, and a point that is demonstrated by the fact that Ms Maxwell's legal proceedings in the county court were stayed to enable the OIA to review her complaint.