Belonging has long been associated with the psychological domain of individuals and is recognised as being one of the five needs of human beings that fuel motivation,Footnote1 self-actualisation and self-determination.Footnote2 Freeman and othersFootnote3 argue that it is important for students to feel that they are important and respected by their university to foster feelings of belonging. Masika and JonesFootnote4 argue that this sense of belonging is also about being respected and this is also important to student engagement. Feeling connected to the campus and their studies is also important to a student’s sense of belongingFootnote5 as are the relationships developed within groupsFootnote6 and their social environment.Footnote7 In order to belong, students need to feel that their course design and assessments take into account their individual needs and wellbeing.Footnote8 More importantly, feelings of not belonging can have an impact on student wellbeing.Footnote9
This article explores how the wellbeing aspect of belonging becomes “A Protected Belonging in Law” and the extent to which institutions and other educational providers now need to adapt their practices to recognise this new legal duty to ensure belonging.
Wellbeing becomes a protected characteristic in statute if it reaches the levels of “disability”. The Equality Act 2010 defines disability as follows:
A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day to-day activities.Footnote10
The broad nature of the definition of disability has been underlined by the amendment to this definition by the Equality Act 2010 (Amendment) Regulations 2023Footnote11 which expands the definition of “day-to-day activities” to include physical, mental or psychological impairments that affect a person’s participation in professional life in relation to others.Footnote12
Baroness Hale makes it clear in the case of Archibald v Fife CouncilFootnote13 that, because disability legislation does not expect equal treatment between disabled students and able-bodied students, an element of more favourable treatment needs to be applied for those falling into the category of having “a physical or mental impairment” that has a “substantial” (ie has lasted or is likely to last for at least 12 months) “and long-term adverse effect on [their] ability to carry out normal day-to-day activities”.
The recent High Court appeal decision in Bristol University v AbrahartFootnote14 provides clarity on a student’s entitlement to the consideration of their wellbeing in the design of curriculum and assessments and a university’s duties in this respect. In doing so the court has also given some practical examples of what may or may not be regarded as normal day-to-day activities in the context of university life that will have an impact on what can arguably be regarded as the protected aspects of a student’s belonging.
At the original trial hearing of the case in the county courtFootnote15 Dr Robert Abrahart, the father of and administrator for Natasha Abrahart (“deceased”) sued Bristol University for failing in its duty of care towards his daughter. The allegation was that Natasha’s mental health issues had been exacerbated by the design of assessments on the course. The course (programme) undertaken by Natasha clearly stated that communication skills were an integral part of the course and the method of assessment clearly referred to oral presentations and interviews. Other skills and attributes included group work. The court had to consider whether there was a legal duty on the university to avoid setting oral assessments for students known to have mental health needs. The court found that a duty of care aroseFootnote16 because as a disabled student Natasha was afforded protection under the Equality Act 2010Footnote17 and the university had failed to justify why reasonable adjustments were not made for Natasha.
The case resulted in increased public scrutiny of universities. The Department of Education, following an online petition signed by members of the public, was forced to clarify the nature of the duty owed by universities as follows: “… to deliver educational and pastoral services to the standard of an ordinarily competent institution and, in carrying out these services, they are expected to act reasonably to protect the health, safety and welfare of their students”.Footnote18
This has been summarised as a duty placed upon universities not to cause harm to students through their actions. While this is not explicitly a common law duty of care it is a clearly defined statutory and contractual duty of care.
Bristol University appealed and the appeal was heard in the High Court and dismissed. The High Court judgment illustrates how Natasha was harmed through university errors and poor practice and procedures in the following ways:
The university’s Student Wellbeing team had information about self-harming and suicide attempts which were not immediately made known to the physics department where Natasha was a student and as such the physics department continued to set assessments and ask Natasha to attend meetings to discuss missed assessments.
The university’s Student Wellbeing team had in mind reasonable adjustments but did not press the physics department to put these in place for Natasha, rather it became part of a continuing dialogue. However, the case of Tarbuck v Sainsbury’s Supermarkets LtdFootnote19 makes it clear that simply consulting is not reasonable adjustment.
The university felt that Natasha herself should have indicated which of the available reasonable adjustments she would like to adopt rather than the Student Wellbeing team imposing a plan of adjustments. The difficulty here is that cases such as Cosgrove v Caesar and HowieFootnote20 make it clear that the duty to make reasonable adjustments is an anticipatory duty. This means a university has to be proactive and the university had not been proactive enough in Natasha’s case. In addition, the adjustments put in place must be reasonable and this will be objectively assessed.Footnote21
Policies that explicitly state that a university is relying on a student to disclose a disability and ensure that reasonable adjustments are effective themselves are not permissible as this would amount to a provision, criterion or practice (PCP) under the Equality Act 2010 that would disadvantage a disabled student. This might be regarded as harsh given that not all students choose to disclose a disability and therefore universities are not always on notice. The case of Cosgrove v Caesar and Howie,Footnote22 however, recognises that there may be situations in which a lack of information about the disability would put the disabled person in a better position to decide on the reasonable adjustments they might need.
That a PCP at the university did indeed put Natasha at a substantial disadvantage in comparison with other students. The PCP was the requirement to do oral interviews and conference and by late 2017 or early 2018 the university knew this. The PCP was connected with Natasha’s mental health as the university knew that she found it hard to speak to others. This also meant she could not “engage with the University’s processes”.Footnote23 The duty to make reasonable adjustments will arise from the particular facts of a PCP but the duty does not arise from actual or constructive knowledge of the disability.Footnote24
The design of assessments and the approach to reasonable adjustment of assessments by an institution can therefore harm a student’s right to protected belonging. What lessons can legal courses draw from the Abrahart decision? If oral presentations and similar types of assessments are capable of being regarded as a PCP in physics, where does this leave similar assessments in the discipline of law (including legal professional courses)?
Bristol University had sought to argue that oral presentations were a legitimate and proportionate way to test whether the skills of a scientist had been acquired by a student and therefore it was a “competence standard” that was being tested.
The Equality Act 2010Footnote25 explicitly states that a PCP will not apply to the application of a competence standard. Schedule 13 to the 2010 Act states that: “A competence standard is an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability”.Footnote26
However, both the county court and the High Court were of the view that the competence could be tested in other ways because the fundamental purpose of the oral assessments for the physics modules in question was to put questions to Natasha about her experiments and this could have been done in other ways rather than a formal interview or presentation and so the method chosen for the assessment was not crucial to the competence standard.
The Equality and Human Rights Commission (EHRC) Technical GuidanceFootnote27 states that in order to impose particular conditions or requirements on a course a provider would need to show that “its purpose is to demonstrate a particular level of a relevant competence or ability such as a requirement that a person has a particular level of relevant knowledge of a subject”.Footnote28
One might assume that legal courses could legitimately set oral presentations as part of a competence standard. However, in the Abrahart decision Linden J specifically stated that Schedule 13 does not mean that it places the competence standard “beyond the reach of the law”.Footnote29 This means law and legal professional courses assessments that comprise oral presentations could still be scrutinised by the court. While law schools may be able to argue that a competence standard is not one imposed by them, but is in fact a mandatory requirement of a regulator, this becomes a more tenuous argument if it is not supported in the competence statements produced by the regulator. For example, the Solicitors Regulation Authority (SRA) Competence Statement (Threshold Standard) does not mention oracy or advocacy as a competent standardFootnote30 neither does the Functioning Legal Knowledge (FLK).Footnote31 All that is required for competence is knowledge of the purpose, procedure and evidence for making specific court applications. However, for the Solicitors Qualifying Examination (SQE2) advocacy is assessed as a required skill through an oral presentation although advocacy and oral presentation are not specifically mentioned in the SRA Competence Statement.
In contrast the Bar Standards Board’s own competence statement (The Professional Statement)Footnote32 does specifically include advocacy as part of a barrister’s distinctive characteristics and this encompasses drafting as well as “persuasive oral advocacy skills”.
The QAA Subject Benchmark Statement for LawFootnote33 recognises that oral assessments in the form of “presentations and other verbal and/or non-verbal activities, such as mooting, negotiating or interviewing”Footnote34 would make up one of the possible assessments students might expect on a law degree. However, it also recognises that assessments should be transparent, inclusive and authentic and reasonable adjustments should be made to assessments to avoid disadvantaging students.Footnote35
The Technical Guidance of the EHRCFootnote36 does state that in limited circumstances the interests of students or other people who may suffer significant disadvantage may be a legitimate reason to not make the reasonable adjustment. The High Court held that to simply rely on the university’s own regulations and policies is not sufficient for the purposes of arguing justification.Footnote37 As such the message is firmly that university regulations are not law and justification needs to be objectively evidenced and substantiated.Footnote38 A regulator’s role in helping to do this is therefore crucial. More importantly the court reminds us that “what a disabled person says and/or does is evidence” and that due process is still important but that each case has to turn on its own facts.Footnote39
Universities now need to carry out an efficacy check of all assessments across their institution at a central level to ensure they reach their own competency standards when put under the microscope. Post Abrahart universities need to think much more strategically about their risk exposure to sanctions from the Competition and Markets Authority (CMA) when describing courses, including indicating where a course has a minimum competence standard that will affect the design of assessments. This is important as the question of whether the imposition of requirements or conditions on a course is measuring a competence standard is clearly an evidential question for the court.Footnote40
This should also include ensuring that course level learning outcomes are clearly mapped and tracked across the linked modules. For example, in Abrahart the learning outcome of “accurately and clearly present complex issues to others at an appropriate level in written and verbal presentations” did not appear in all the relevant physics modules to which it was intended to be mapped. Also the marking scheme did not always award marks for the particular competency of oral communication skills.Footnote41
Processes such as extenuating circumstances or late submissions may not be effective for students whose mental health makes them unable to communicate with others or students who have levels of anxiety. As noted in Abrahart extenuating circumstances are post-operative and students still have to bear the emotional impact of the release of poor marks which might show they are at risk of failing their degree.Footnote42 Universities also have to consider the impact of “penalties” on a student’s mental health. This was seen in Abrahart to have exacerbated Natasha’s mental decline.Footnote43
Universities now need to take steps on reasonable adjustments even before a disability assessment has been completed if there is sufficient evidence to suggest what the likely outcome of the disability assessment might be. Therefore temporary learning agreements may need to be put in place for students to identify and action reasonable adjustments where there is evidence of the possibility of a PCP.
Universities are now in an unenviable position of having to consider whether there is a need to revise their code of conduct to include a requirement that all students who consider that they have a disability that might require reasonable adjustments disclose this in advance and face the termination of registration for failing to disclose this information. This is because the anticipatory duty can only be effective where there is evidence on which to anticipate. This is entering dangerous territory. While this would not go as far as putting the burden on the student to suggest the reasonable adjustment (as this would go against the case of Cosgrove)Footnote44 it is worrying nonetheless to place a mandatory burden of disclosure on students.
The student journey now clearly includes a right to protection from harm, particularly to wellbeing and this has become a firm duty placed on institutions that requires them now to think about the true meaning of belonging and the consequences for students who feel that they do not belong. The judge in the Abrahart appeal declined to give a view on the negligence point made in the cross-appeal by Dr Abrahart. This was on the question of whether a common law duty of care arises for universities and whether Bristol University owed a general duty of care to Natasha. Linden J noted that breaching a statutory duty of care under the Equality Act 2010 would not be the same as breaching a common law duty of care.Footnote45 Indeed, establishing a new duty of care using the CaparoFootnote46 principles in this area would not be without its complications given the requirement of foreseeability in law yet the lack of need for actual or constructive knowledge for the imposition of reasonable adjustments.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 Abraham H Maslow, Towards a Psychology of Being (1st edn, Van Nostrand Reinhold 1962).
2 Abraham H Maslow, Towards a Psychology of Being (3rd edn, Wiley 1998).
3 Tierra M Freeman, Lynley H Anderman and Jane M Jensen, “Sense of Belonging in College Freshmen at the Classroom and Campus Levels” (2007) 75 Journal of Experimental Education 203.
4 Rachel Masika and Jennie Jones, “Building Student Belonging and Engagement: Insights into Higher Education Students’ Experiences of Participating and Learning Together” (2016) 21 Teaching in Higher Education 138.
5 See for example, research by Heather P Libbey, “Measuring Student Relationships to School: Attachment, Bonding, Connectedness, and Engagement” (2004) 74 Journal of School Health 274 and Michael A Lawson and Hal A Lawson, “New Conceptual Frameworks for Student Engagement Research, Policy, and Practice” (2013) 83 Review of Educational Research 432.
6 See Roy F Baumeister and Mark R Leary, “The Need to Belong” (1995) 117 Psychological Bulletin 497.
7 See for example, Stefanie Hassel and Nathan Ridout, “An Investigation of First-Year Students’ and Lecturers’ Expectations of University Education” (2018) 8 Front Psychology, 2218 https:///doi.org/10.3389/fpsyg.2017.02218.
8 See for example, Fiona Campbell and others, “Factors That Influence Mental Health of University and College Students in the UK: A Systematic Review” (2022) 22 BMC Public Health, 1778 https://doi.org/10.1186/s12889-022-13943-x.
9 See for example Anna Jackson, “The Four Foundations of Belonging at University: WONKHE Report” (2022) <https://wonkhe.com/blogs/the-four-foundations-of-belonging-at-university/> accessed 24 February 2024.
10 Equality Act 2010, s 6(1).
11 Equality Act 2010 (Amendment) Regulations 2023, SI 2023/1425, reg 6 which inserts Equality Act 2010, sch 1, para 5A.
12 See Case C–335/11 HK Danmark acting on behalf of Ring v Dansk Almennyttigt Boligselskab [2013] ECR 222 and the Explanatory Memorandum to the Equality Act 2010 (Amendment) Regulations 2023.
13 [2004] UKHL 32.
14 This case was heard in the High Court on 14 February 2024 (case no KA-2022-BRS-000012) [2024] EWHC 299 (KB).
15 The original trial was heard in the Bristol County Court on 20 May 2022 (claim no G10YX983).
16 Bristol University v Abrahart (n 14) [158]–[165].
17 Bristol University v Abrahart (n 14) [152].
18 See online petition and comments from the Department of Education on the government online petition website <https://petition.parliament.uk/petitions/622847?reveal_response=yes> accessed 19 December 2024.
19 [2006] IRLR 664 [69]–[72].
20 [2001] IRLR 653, 654–57 (Lindsay P).
21 See Allen v Royal Bank of Scotland [2009] EWCA Civ 1213 which states that the test of reasonableness is objective.
22 [2001] IRLR 653 [7].
23 Bristol University v Abrahart (n 14) [212] (iii).
24 Bristol University v Abrahart (n 14) [165].
25 Equality Act 2010, sch 13, para 4(2).
26 Equality Act 2010, sch 13, para 4(3).
27 Equality and Human Rights Commission, Technical Guidance (EHRC 2014). The Abrahart appeal considered the status of the Technical Guidance issued by the EHRC which although not a source of law, could be used as guidance and evidence as it had gone through a rigorous consultation process.
28 ibid para 7.34.
29 Bristol University v Abrahart (n 14) [173].
30 See SRA, “Competence Statement: Threshold Standard” <https://www.sra.org.uk/solicitors/resources/continuing-competence/cpd/competence-statement/threshold-standard/> accessed 20 February 2024.
31 See SRA, “Competence Statement: Statement of Legal Knowledge” <https://www.sra.org.uk/solicitors/resources/continuing-competence/cpd/competence-statement/statement-legal-knowledge/> accessed 20 February 2024.
32 See Bar Standards Board, “The Professional Statement” <https://www.barstandardsboard.org.uk/training-qualification/the-professional-statement.html> accessed 20 February 2024.
33 QAA, Subject Benchmark Statement: Law (QAA March 2023) <https://www.qaa.ac.uk/docs/qaa/sbs/sbs-law-23.pdf?sfvrsn=c271a881_6#:~:text=This%20Statement%20requires%20knowledge%20of,well%20as%20sources%20of%20law> accessed 20 February 2024.
34 ibid para 3.11.
35 ibid para 3.9.
36 EHRC (n 27) para 7.80.
37 Surprisingly even though the appeal judge accepted that the trial judged did not deal with justification correctly in failing to distinguish its application to ss 15 and 19 of the 2010 Act separately, the court still would not intervene in the finding as it felt that the confusion may have arisen from the way Bristol University’s counsel had presented their arguments – see Bristol University v Abrahart (n 14) [258].
38 Bristol University v Abrahart (n 14) [220].
39 Bristol University v Abrahart (n 14) [267].
40 Bristol University v Abrahart (n 14) [177].
41 Bristol University v Abrahart (n 14) [196].
42 Bristol University v Abrahart (n 14) [216].
43 Bristol University v Abrahart (n 14) [215].
44 Cosgrove (n 20).
45 Bristol University v Abrahart (n 14) [270] (iv).
46 Caparo Industries v Dickman Plc [1990] UKHL 2.