The decision to expel a university student for a disciplinary offence is one of the most serious a university has to take. This article considers some of the potential claims that an expelled student might pursue and gives advice on how best to avoid such claims.
Complaint to the Office of the Independent Adjudicator for Higher Education (OIA)
An expelled student is likely, in the first instance, to bring a complaint to the body specifically established to consider complaints against universities, the OIA. Such complaints should be brought within three months of the completion of the university's own procedure. The OIA may take whatever approach it considers appropriate in order to assess the merits of a complaint. In some cases it will limit itself to considering whether the university had a reasonably fair procedure in place, and whether it applied that procedure correctly. In other cases it might decide to effectively re-hear the case against the student and make up its own mind as to whether expulsion was the fair outcome.
Breach of contract claim
Ordinarily, there is a contract between the student and the university. Therefore, a student may bring a claim for breach of this contract. Such claims are usually brought in the County Court and there is a much longer period - up to six years- for bringing such a claim. The contract is likely to incorporate the university's disciplinary rules. This means that a student pursuing a breach of contract claim will usually try to focus on any procedural, rather than make a general complaint that the outcome was unfair.
Judicial review claim
Claims for judicial review (JR) are brought in the High Court. It is a much quicker process than ordinary litigation. The deadline for bringing an application is only three months from the decision that is the subject of the complaint. Usually, the Court will only look favourably on an application for JR if the student has already exhausted other avenues. This would mean that the student should have gone through any internal appeal process available and should also have brought a complaint before the OIA. If the student has not done so, and does not have a good reason why not, then his or her application for JR is very unlikely to get off the ground.Even if the student's JR application is considered, the threshold for succeeding is relatively high. A student will only succeed in cases where there is obvious unfairness or a serious departure from the disciplinary procedure on the part of the university.
If the student complains that there was an element of discrimination against him or her in relation to the expulsion, then it is possible to raise this point in the complaint to the OIA or in a JR application. However, a separate claim for discrimination that can also be brought under the Equality Act 2010. Such a claim should be brought in the County Court. There is a deadline of six months to bring this claim, although there is provision to extend this deadline where a complaint has been made to the OIA.
Practical guidance for universities
The test of whether a university has acted fairly in expelling a student will be slightly different for each of the above claims. However, there are some general rules that a university should follow that will put it in the best possible position to defend any of these claims. Here are some brief tips:
- Follow the disciplinary rules wherever they relate to the university's obligations.
- Do allow flexibility in the rules to allow the student some leeway.
- Do not give the student any surprises. The student should be told the specific allegations, in sufficient detail to enable a full response to be made.
- Make sure that the person or persons who will actually be making the decision on expulsion are the correct individuals according to the disciplinary rules.
- The decision should not be pre-determined. Neither the decision maker, nor anyone else, should say or do anything to indicate that the decision has been made before the disciplinary process is complete.
- There is some argument about whether the decision maker should give reasons for the decision to expel. Some people feel that this just gives a student more material to incorporate into a complaint. However, having a written record of the reasons for the decision can be helpful in resisting claims.
- There is no definite rule saying that a student should have a right of appeal, but providing a procedure for an appeal can be very useful to show that overall the procedure followed was fair.