Strike action at 150 universities may trigger force majeure commercial contract provisions or lead to breach of student contract claims.
University staff pay has dominated the education sector headlines of late with more than 150 institutions experiencing strike action over a three-day period. The knock-on effect of this is that some students may be without access to vital term-time services with the last of the strikes due to take place on 30 November. Many students may complain or pursue a claim if they consider their university has breached their consumer contract rights.
In the wake of the pandemic, many universities reviewed their standard wording for commercial contracts and student policies and procedures to ensure they contained robust yet fair terms. Higher education providers wanted to ensure that their contract terms did not prevent them reacting swiftly and putting in place alternative measures or provision, if the government announced any further lockdowns.
In light of the current wave of strike action, now would be a good time to check whether the force majeure provisions within commercial contracts with for example, suppliers or partners have been triggered. It would be helpful then to determine whether any contractual obligations could potentially be suspended (temporarily) or should fall away.
In terms of student contract provisions, it will be necessary to check whether these permit alternative services being provided or restrict obligations whilst the strike is ongoing. The Competition and Markets Authority advice on consumer protection law for Higher education providers makes clear that any unfair terms are unenforceable. This is due to the fact that section 64(2) of the Consumer Rights Act 2015 indicates that an unfair term can cause a significant imbalance in the parties’ rights and obligations to the detriment of the student as a consumer. The overall obligations owed to students are rarely written down in a single document so conducting a regular review of policies and procedures and of what information is provided to students is critical. This will help reduce the risk of inadvertently breaching rights if industrial action or any other unexpected event occurs.
Blake Morgan has significant expertise in advising on and drafting commercial and consumer contracts in the context of the education sector. If you have any questions regarding steps to take to amend contract provisions then please do contact us.
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