Why do UK universities keep losing legal cases?

The belated obsession this winter with the Post Office scandal – in which workers were wrongly prosecuted for embezzling funds – shows the UK’s enduring fascination with a David versus Goliath-style legal fight in which underdogs take on the establishment.

Part of the draw of such battles lies in the fact that the Davids, by their nature, seldom win.

Yet for universities – ostensibly the Goliaths in any fight owing to the power and resources at their disposal – legal victories have been hard to come by of late. Instead they have been racking up a series of damaging defeats, with potentially wide-ranging ramifications for the sector.

First Jo Phoenix, a 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.

David Miller, a professor of political sociology, similarly argued he had been wrongly sacked by the University of Bristol due to “protected beliefs” – this time his anti-Zionism – and won, making clear he would be seeking “maximum compensation” for the damage done to his career.

The same institution was at the centre of another landmark case heard at the Court of Appeal, which upheld an earlier judgment that the institution contributed to the suicide of one of its students, Natasha Abrahart, by failing to adjust its assessments.

Even one of the country’s most wealthy and powerful institutions, the University of Oxford, has not been immune to this losing streak: two tutors, Alice Jolly and Rebecca Abrams, successfully proved at tribunal that they should not have been kept on personal services contracts for the 15 years they worked for the institution.

Meanwhile, UCL failed in its attempts to ensure complaints from students about its teaching during Covid and industrial action were dealt with by its own processes rather than the courts, and this potentially seismic case remains ongoing. In a lesser-reported ruling, the University of Portsmouth had to pay £450,000 to an Indian academic, Kajal Sharma, who was not given a job during what was described as a selection process “tainted by race discrimination”.

Smita Jamdar, head of education at Shakespeare Martineau, said the law firm’s own increased caseload in recent years appeared to confirm that the sector had become more litigious, with the cases that make it to a ruling only the “tip of the iceberg”.

She put this down to several factors, the main one being that staff and students had become increasingly aware of their rights and were often encouraged by third parties to test evolving areas of law. These sorts of cases have also benefited from the emergence of crowdfunding and conditional-fee arrangements, which have helped with the often huge costs associated with making claims.

Much of the recent litigation has its roots in the UK’s influential Equality Act, passed in 2010. Ms Abrahart’s parents’ use of the act was familiar: they argued that people with disabilities – their daughter had a severe anxiety disorder – should not face discrimination. Dr Sharma also relied upon the act’s well-established protections against racism.

But in the Phoenix and Miller cases, its use was more novel, and both managed to stretch the act’s definition of “protected philosophical beliefs” to include their views.

Shortly after these cases concluded, there were reports that Jim McCambridge, a professor in public health at the University of York, had initiated legal action over his “anti-tobacco views”, which he claimed should also be a protected belief.

David Ruebain, who helped draft the legislation when he was director of legal policy at the Equality and Human Rights Commission, told a recent Universities UK conference that “none of us really contemplated how far the belief element would go when we were crafting that piece of legislation”.

“I’m not saying that the case law is going against the intention – I don’t think that’s true. But I don’t think there was a contemplation of the way it would evolve at the time, which…raises interesting challenges when we are trying to think about free speech matters,” said Professor Ruebain, now pro vice-chancellor for culture, equality and inclusion at the University of Sussex.

Protected beliefs have provided a framework for academics in employment cases, but it is not always a comfortable fit, said James Murray, legal director at Doyle Clayton, especially as one of the tests for such a belief is that it is unchangeable regardless of any new evidence. 

Recent cases had been the first time that tribunals had engaged with academic freedom issues in any meaningful way, he added, so a “generous view” was that universities were struggling because they were grappling with “very challenging areas at the cutting edge of equality law”.

“I think they probably will keep losing these cases because this interaction between employment protection under the Equality Act and academic freedom is very far from getting sorted out properly,” said Mr Murray, also a research fellow at the University of Buckingham.

“The courts need to do a lot of work to work out how these two things interact. Even with the best will in the world, it is going to be hard for universities to know what’s safe for them to do.”

Institutions often find themselves in a lose-lose position in legal cases, according to Ms Jamdar, because they often involve staff and students who have diametrically opposed views.

“Universities are having to make almost impossible judgements,” she said. “They know, whatever they decide, somebody is going to be deeply unhappy and increasingly willing to take that through to some sort of challenge.

“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.”

Given this, some have argued that academic issues – particularly free speech – should not be the domain of the legal system at all but should be settled by debate and discussion. 

“As soon as these things end up in a courtroom, a decision has to be made,” said Eric Heinze, professor of law and humanities at Queen Mary University of London. “It becomes an all-or-nothing, exclusive dichotomy. Almost by definition, I don’t think courts have that competence. I don’t think anybody has that competence. It is just arbitrary.”

Professor Heinz said that, as the purpose of a university was to consider hard ideas, they “need to find ways of dealing with this themselves instead of passing the buck to people who have no more competence, and arguably less competence”.

But many have lost faith that universities are able to handle these things internally, which is precisely why they are turning to the courts instead.

“Internal systems in universities are completely controlled by those universities,” said Wyn Evans, an astrophysics professor at the University of Cambridge and co-founder of the 21 Group, which supports victims of bullying and discrimination in academia. “They are not fair. In fact, I would use a stronger word; I would say they are often corrupt.

“A university can choose who the investigator is, they can choose who is on the appeal panel. At all times they are guided by their legal department, which advises there might be difficulties with conceding things at an early stage.

“No one wants to go to court; it is a time-consuming operation and is very nerve-racking, and any court case carries a risk. Nobody came into academia to end up suing their university, so it is very interesting to see all these cases and, I think, it points to a failure of the internal processes of a university.”

Ms Jamdar took a kinder view. “Sometimes the issue is that you can’t resolve it yourself,” she said. “Because you are dealing with competing rights on campus, unless everybody is willing to reach an agreement on how to move forward, you are going to have to make a decision that somebody is likely to be unhappy about.”

Universities grappling with how to reconcile these complex issues will soon face a further added complication in the form of the Office for Students’ free speech complaints scheme, which will open a new avenue for those with grievances.

But given that the regulator has said its only concern is whether speech is lawful or unlawful – while the courts have focused more on the conduct and actions of those involved in a case – the different routes might lead to different outcomes, Ms Jamdar warned.

“It is going to be a nightmare, frankly,” she said. “I think universities are going to have to accept there may be more litigation, and they are going to lose more cases.”

This does not mean that nothing can be learnt from the rulings that have come before, she said.

“We would say you can’t ignore these judgments. They give you a really valuable insight into how the law will be applied to what you do on a day-to-day basis,” she said.

“But they are not precedent. It is not simply a matter of, ‘If you do it exactly like this, you’ll be fine.’ It is more thinking about what themes are coming through these cases, what they are telling us about the culture within universities, the way we do things and how that might need to evolve.”

The chance to affect this wider picture is also often what motivates those bringing claims, with the most recent cases drawing on several long-standing grievances in the sector – from casualised contracts to the quality of teaching.

Professor Evans, of the 21 Group, said universities were scared of only two things – legal action and bad publicity – so using the courts would always be one of the most effective ways of driving change.

“I hope that happens because I think universities are a Post Office scandal waiting to happen,” he said. “There are some very serious problems in the sector.”

tom.williams@timeshighereducation.com