AB v The University of XYZ (Rev 1)

University disciplinary procedures must comply with contractual and common-law requirements of natural justice. A student has no automatic right to legal representation merely because proceedings are disciplinary. The question is whether representation is required for fairness in the particular circumstances, having regard to the seriousness of the allegation, likely legal issues, the student’s ability to present the case, procedural difficulties, delay, fairness between the parties and the need to protect complainants.

Natural justice does not invariably require a respondent to question a complainant directly. Questions may be filtered and put by the chair, provided relevant questioning remains possible and the process is fair. A contractual power to amend disciplinary regulations must be exercised reasonably and consistently with any express notice provisions.

The claimant was a student who faced disciplinary proceedings concerning an allegation of sexual misconduct arising during an Erasmus placement abroad. The university applied its 2019 disciplinary regulations, which had replaced the 2018 regulations and restricted an accompanying person to a support role.

The claimant challenged the process on contractual and natural-justice grounds. He argued that the university should have applied the earlier regulations, that he was entitled to legal representation, and that he had a right to cross-examine the complainant directly. The disciplinary committee proceeded in his absence, found the allegation proved, and the claimant was withdrawn from the university. The central issues were whether the applicable regulations had been used, whether legal representation was required for fairness, and whether questioning could properly be conducted through the chair.

1. Applicable regulations. The contract incorporated the university’s regulations as amended from time to time and expressly permitted reasonable changes. The 2019 regulations could therefore be applied. The amendments were made for a legitimate safeguarding purpose, were not unreasonable, and the claimant had adequate notice. The allegation also fell within the contractual disciplinary scheme notwithstanding that the conduct occurred abroad and in private premises.
2. Legal representation. The contractual requirement that disciplinary proceedings observe natural justice reflected an implied obligation of fairness. The relevant standard was equivalent to that applicable in public law. There was no automatic right to representation in disciplinary proceedings, but fairness could require it in an individual case. The appropriate guidance was the factor-based approach in R v Secretary of State for the Home Department ex p Tarrant, including the seriousness of the charge, legal issues, capacity to understand the case, procedural difficulties, delay and fairness between the parties. The court also considered the absence of an effective reconsideration process and the danger of serious consequences without representation.
3. Applying those factors, the seriousness of the sexual-misconduct allegation, the potential consequences, the importance of oral evidence, procedural issues and the absence of a full corrective appeal meant that legal representation was required. The university had wrongly treated representation as unavailable in every case. The claimant’s failure to attend or appeal did not remove the breach, although it could affect relief.
4. Questioning the complainant. Natural justice required the complainant’s evidence to be tested, but did not confer an unrestricted right of direct cross-examination. The chair could filter questions and ask them on the claimant’s behalf, particularly to protect a vulnerable complainant, provided the filtering was not unfair. No fundamental right existed to choose who asked the questions.
5. Relief. Damages were inadequate because the outcome of a fair hearing could not be assessed. Specific performance was therefore appropriate. The court ordered that a further disciplinary committee be held. Costs were reserved pending submissions.

First-instance decision. No prior appellate decision is stated in the judgment.