3: The legal obligations of the University and Council
- Alice Wakely
The University is subject to a raft of law as for any large organisation, including health and safety, building regulations, the Equality Act 2010 and related regulations, the 2007 corporate manslaughter legislation, and all forms of financial legislation such as the Bribery Act 2011. In addition, the Employment Rights Act 1996 and all other employment-related legislation all apply, such as various Working Time Regulations, Agency and Part-Time workers, Trade Union and Labour Relations, pensions legislation and regulation, and so on.
Charity legislation as applied to the University as an exempt charity is covered in a separate section of the Handbook.
Whilst universities are often regarded as private, autonomous bodies operating in a ‘market’ for HE, we are regarded as a ‘public authority’ for many purposes. This means universities are bound by additional legislation as an outcome of this status which private companies would not be, including the UK Data Protection Act 2019 (GDPR is the EU level directive) and the Freedom of Information Act 2000.
Legislation specific to HE includes the various Acts of Parliament set out in Appendix 1.
There are a number of specific pieces of legislation which merit a brief discussion as they feature, and are often misrepresented, in media and other debates about the role of universities: freedom of speech and academic freedom. In both cases universities have been perhaps caricatured as ‘lackademia’ in primarily accommodating left-leaning and liberal views.
Two separate pieces of legislation require university governing bodies to uphold freedom of speech and academic freedom as follows:
Freedom of speech is addressed in the Education (No 2) Act 1986, which states that university governing bodies have a legal duty to ensure that freedom of speech within the law is upheld for students, staff and visitors on university campuses, with a code of practice required to set out the operation and assessment of such decisions. In practice this means that speakers and topics cannot be barred from speaking solely on the grounds that an individual or group of individuals might find the views of the speaker(s) offensive. This is why universities do not generally ‘no-platform’ individuals or groups, in the way that has sometimes (but rarely) exercised by a number of students’ unions, following NUS or their own members’ policies.
Providing the views are not inciting hatred or violence, or are those from or representing a proscribed terrorist organisation, then freedom of speech should normally be upheld. However, such interpretations are always challenging and will often lead to dissatisfaction from individuals or groups who feel affronted by the views of controversial, but nonetheless lawful speakers. Balancing other factors such as the risks of a public order issue or health and safety concerns as a result of protests associated with a controversial group, speaker or event occurring on campus will determine whether an event can be held, or whether it needs to be deferred or subject to certain restrictions. How universities are able to uphold freedom of speech, and allow a full spectrum of viewpoints in a spirit of robust civility, is key.
Governing bodies will rarely get involved directly in specific cases, and delegate their duties to management or a mix of management and lay members. The University’s new Ethics Framework Governance Committee includes in its terms of reference the ability to assess particularly complex and sensitive freedom of speech cases.
Academic freedom is covered in the Education Reform Act 1988, which places on governing bodies the duty to ensure that academic staff have freedom within the law to question and test received wisdom, and put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions. This should be at the heart of a university’s mission through pioneering research and pedagogy, and this is why this is baked into the University’s domestic legislation in its Statutes. However, what academic freedom means in practice, and what the obligations are for individuals in exercising such freedoms, are as important as the rights associated with it. For example, academic freedom should be underpinned by rigorous evidence and debate in order to back up the views expressed, and the obligations to the discipline and community of practice is key. There are limits to academic freedom, as it would never be right to condone views such as Holocaust denial, or pseudo science in the interests of academic freedom.
Council embodies the powers of the University and also its liabilities if something were to go wrong, and therefore is legally accountable on behalf of the University. This does mean that individuals within the University are exempt from the law in relation to their professional lives, at all levels of the organisation. The University indemnifies Council and UEB members as trustees and senior managers respectively through Directors and Officers Insurance in respect of wrongful acts, provided that due skill and diligence is demonstrated in the exercise of their duties and decision-making. Separate insurance is also in place for those individuals who occupy multiple roles, e.g. as a director of a wholly-owned subsidiary company of the University.
Health and Safety is an area where governing body members often ask about the level of accountability they hold for health and safety matters. The University Health and Safety Association (USHA) underscores the importance of the governing body having strategic oversight of health and safety policy, seeking assurance from executive management that a visible commitment to health and safety is culturally led and cascaded across the University, and seeking assurance on legal compliance. Provision of regular reports to the governing body on health and safety is one way of keeping members informed at the highest level and demonstrating due regard to the importance of health and safety, as is an effective health and safety management committee.
What does this mean when something goes wrong? In embodying the legal authority of the University, if a health and safety offence were committed at the University, this would be a matter of concern for the governing body, as being guilty of an offence under the Health and Safety at Work Act 1974, for example, is likely to be a ‘corporate’ offence in a large organisation such as a University. However, this does not exempt individuals where a health and safety offence has occurred with the consent, or because of the negligence of senior personnel, including governing body members, or most generally those in leadership roles who are responsibility for the implementation of health and safety systems.
There are several cases of health and safety prosecutions of ‘body corporates’ in the UK university sector, with no parallel charges against individuals in positions of influence and authority. As well as the obvious harm caused to those involved in the incident, the financial sanctions and reputational risks for universities in this situation can be significant and enduring.