Courting controversy

Follow the news closely and you soon start to see patterns and recurring themes.

At times these reflect a glacial pace of change: pick a selection of Times Higher Education back copies over the past five decades and you will find stories in every issue that could, but for a few details, be transposed to the higher education sector today.

At other times, trends in the headlines reflect something else: a rapid shift in the way universities are operating, or the environment they are operating in.

One such shift, which we assess in our news pages this week, is evident in the recent spate of legal rulings affecting UK higher education.

The judgments have varied in substance, but taken together they suggest the courts have a growing role in setting the parameters of some of the sector’s most contentious debates.

Among recent, high-profile examples is Jo Phoenix’s tribunal case, in which the former Open University professor successfully sued the institution for harassment and unfair dismissal after being forced to leave her post over her gender-critical views.

Other examples include a professor who was found to have been unfairly dismissed by the University of Bristol due to his “protected characteristics” (in this instance, his anti-Zionist views); and another employment case at the University of Oxford, which a tribunal ruled had unfairly kept two tutors on personal services contracts for 15 years.

A notable aspect of all of these cases is that they involve disputes between institutions and staff, suggesting a breakdown in internal processes for finding acceptable solutions, as well as an increasingly fraught professional environment as identity politics fray collegial bonds and staff lose faith that never-ending industrial action will resolve employment issues.

Ask around, and you also hear suggestions that another dynamic might be at play: that at a time of fractious industrial relations, universities are taking a harder-nosed view that legal processes should be taken to their conclusion, rather than points conceded or settlements reached.

If this is an accurate reading of the situation then, as our analysis makes clear, the courts are not necessarily reaching the conclusions that universities might have hoped – institutions seem to be on a losing streak.

But an alternative, less critical, interpretation of this apparent change in approach could be that institutions are seeking to test the law in order to bring some clarity for a sector that does not always understand its duties, and needs the guidance that a legal judgment can bring.

Seen in that light, the losing streak could be seen as a win, as the rulings set out some guardrails for the sector about where to draw lines on issues that can be very difficult for all involved.

The fact that tribunal judgments are made public will also provide clarity for others who might be in similar positions – for example, in their terms of employment – and who might also seek redress. That would not flow from a quiet settlement and non-disclosure agreement.

While the cases discussed are all focused on staff, it is worth noting that students and parents are also involved in legal proceedings, something that was widely predicted when the marketisation of the sector recast students as consumers.

Among current and recent cases of note is a lawsuit against UCL on behalf of hundreds of students, claiming that the institution breached its contract with the complainants during Covid, when classes were cancelled or moved online; and the recent court win by the parents of student Natasha Abrahart, who took her own life, which found that Bristol had breached the Equality Act by failing to make reasonable adjustments to support her.

The university took that judgment to appeal (which it lost), saying that it had done so in order to get legal clarity on an issue that had wider significance for the whole sector.

In an online comment responding to our reporting of this topic, a THE reader observed pithily: “You know what they say: ‘Make two lawyers happy, sue someone today’.”

But our analysis suggests that, more than anything, the spate of legal cases reflects just how complex and unresolvable some of the differences that exist within universities have become.

As Smita Jamdar, head of education at the law firm Shakespeare Martineau, puts it: “Universities are having to make almost impossible judgements…It is not that there is an easy legal answer they are just not spotting; they are trying to balance a huge range of very complex rights and responsibilities and, ultimately, you can’t satisfy everybody.”

john.gill@timeshighereducation.com