The lecturer protests that commenced in February 2018 have been billed as the most serious industrial action based disruption to UK universities, with more than 1 million students at 64 Higher Education providers believed to have lost up to 14 days of teaching time.
Action by members of the University and College Union was triggered by reform proposed by Universities UK (UUK) to the Universities Superannuation Scheme (USS). It is argued that the change being resisted - moving from a defined benefit scheme to a defined contribution one - will leave many significantly worse off in retirement.
The situation has highlighted again the cost and consumerisation of higher education, with thousands of students around the country signing petitions indicating support for staff but demanding refunds from their institutions for disruption to teaching and assessment. Soon after the industrial action began, students at London universities called for a refund of £1,260 each. International students, who pay considerably higher fees, may demand more. The reaction of higher education providers has been mixed.
A number of universities (eg Manchester and Warwick) confirmed quickly that they would not pay compensation to students. One argument in support of this approach is that students have not suffered a 'total loss of consideration' under their contract for educational services because they were and are still able to access significant aspects of their university's services and facilities.
Others (eg King's College London) have taken a different line, suggesting they will create a fund from money withheld from the salaries of striking staff to offset the impact on students affected. This approach is endorsed by the new Universities Minister, Sam Gyimah, who has pointed towards the possibility of either tuition fee refunds or the rearrangement of cancelled contact time.
UUK has advised students considering legal action to first make use of their provider's formal complaints procedure, and if necessary to refer the matter to the Office of the Independent Adjudicator (OIA). The OIA endorses this approach and has confirmed that it will accept eligible complaints from students individually or in groups. Whilst the OIA does not determine legal rights and responsibilities, it would look at the terms of the contract between the institution and the student(s) affected and consider the extent to which it complies with consumer protection law guidance issued by the Competition and Markets Authority. Particular attention is likely to be given to reliance on force majeure provisions and how a provider has acted to mitigate the consequences of the strike. Helpfully, the OIA has stated that students should not try to quantify their loss by simply dividing their annual tuition fee by the number of teaching weeks and sessions per week.
The Office for Students (OfS) has confirmed that whilst it will not become involved in the substance of the USS pensions dispute, it will seek to mitigate the impact of further action on students. Compliance with initial and ongoing conditions of registration with the OfS requires having measures in place to preserve quality and standards and to uphold consumer protection. Mitigating the effects on students and ensuring they know where to go for advice is key, as is the need to maintain academic standards and the value of qualifications.
Despite these messages, two class action lawsuits against universities citing breaches of the Consumer Rights Act 2015 are currently being prepared. Whilst these claims remain contingent on the raising of funds and/or the participation of a third party litigation funder, it has been suggested that they could lead to refunds running into millions of pounds.