Education Digest Spring term – Key Employment Law changes in the Education sector
2024 sees a raft of new employment legislation in addition to the usual increase to the minimum wage
You’ve got important work to do, but these seats of learning are about more than just education – you require a sharp business focus to stay at the top of your game in a competitive marketplace, and some issues need an expert legal hand.
Our multi-disciplinary team is recognised as one of the strongest in the UK, combining the most experienced legal practitioners in the higher and further education fields across a range of specialisms.
From governance to constitutional issues, reputation management to commercial strategy, employment matters to health and safety, estate management to property development, intellectual property to litigation – we’ve got you covered.
We’ll help you maximise your commercial opportunities, safeguard your higher and further education establishment and plan for the future with confidence.
Work we have done
Intellectual Property
- Advising a University on the copyright aspects of the recording and transmission of lectures for remote access by foreign students
- Advising another University in relation to a spin out, including negotiating the patent and technology licence agreements for the use of the core technology by the spin out company
- We have advised a University on its spin out activity over many years. This has involved dealing with IP issues, the roles and interests of academic staff in spin outs, the state of the university and ongoing support given to the spin out including ongoing payment of services and premises. In a small number of instances these companies have gone on to list in the AIM market, in rather more they have been sold and in very many they have raised funds. In other cases the approach has been a licence of IP or the undertaking of contract research. The university has consequently developed a strong reputation in relation to commercialisation and periodic receipt of cash sums as a result of realisations. The university has been keen to also be seen as supportive of students and academic staff and creating clusters of activities in relevant sectors. Our role has been to guide the university in its commercial and legal position but also to help it manage the legal, financial and reputational risks
Commercial
- Acting for a University in a joint venture with INTO to establish a campus for the delivery of courses in London
- Reviewing and updating a University’s standard terms and conditions for the provision of consultancy services
- We acted for a University client to provide a review of the existing group structure, evaluating its robustness in light of its growth strategy including a Chinese subsidiary. This review had to have regard to financial, regulatory (including charity law) and reputational issues as well as property, people and financial resources. We had to consider the Articles of Government, Statement of Primary Responsibilities, the OfS, the management and control of subsidiaries, the risk and responsibilities of the Board, the consideration of students (including the sponsor licence), information governance and the management of risks. This required a detailed and comprehensive review of the risk and activities of the university against the entire range of regulations with which it needs to comply and feed directly into the strategic review of its activities
- We advised a University upon a collaboration agreement under which an overseas institution was able to initially offer teaching facilities for the University enabling it to offer degrees and to help develop the overseas institutions capacity and quality so that it could offer degree level qualifications
- We advised on a collaborative research and development agreement which involved a Scottish University and two research bodies. The project was in part funded by Innovate UK through its Agritech Catalyst programme and also attracted funding from the Biotechnology and Biological Sciences Research Council. The work included preparing a suitable collaboration agreement and advice on the application of state aid laws and UK and EU competition laws (notably under the Research and Development Block Exemption)
Corporate
- Advising a University on its acquisition of another University’s School of Medicine, Pharmacology and Health. This included preparing a commercial agreement which was highly complex and included the need to consider the public procurement and other regulatory aspects of the transfer, the identification and transfer of the required assets and the handling of the transfer of undergraduate, post graduate and research contracts (with the consumer rights of students under those contracts being a material concern). We also provided complex TUPE advice
- We advised a University upon the acquisition of a school from another University dealing with teach out obligations, transferring staff and students, pensions issues and research projects
Property
- We acted for a University on the first registration of a block of 60 houses, which were sub-let and further underlet on long residential leases, which were being enfranchised. We dealt with pre-emption rights and title defects. Subsequently we acted an exclusivity agreement leading to a sale of approximately half of the houses to a private investor for £7.25M, dealing with cross rights, maintenance of shared facilities obligations and protection for the tenants’ rights, works and clearance issues
- We advised a University on a first registration application for parts of its estate to enable the University to seek grant funding to refurbish and develop historic buildings. We advised on the legal charge which the grant funder required to secure the funding on the newly registered freehold title. The University was able to draw down funds and substantially improve its buildings
- We advised a University on the disposal of various surplus dilapidated properties which were leased to other entities. The University was able to benefit from a capital receipt and also extricate itself from future obligations to the tenants in respect of maintenance and other liabilities as landlord
- We act on renewals of leases where the University are tenants and also where they are landlord dealing with section 25 and section 26 notices
- We acted for a University on their taking a surrender of a lease of an office block to enable the University to take back occupation for much needed office space in a central city area
- We acted for a University on their taking an agreement for lease of an industrial unit to which they were to carry out extensive works to construct a cavitation tunnel for testing wind impact at sea. A lease was to be granted on completion of the works. The project was key to the University to allow the cavitation tunnel to vacate a prime area within the main campus where the facility was originally located
- We advised a University in connection with the development of land at a Hospital for the construction of a medical school. This transaction involved the negotiation of a development agreement, head lease and under lease between the NHS Foundation Trust and the University Medical School
- We acted for a University in relation to a complex s106 Agreement relating to the university’s proposed new academic building and extension to their sports centre as well as a 1279 bedroom student accommodation development. The work involved liaising with the client and their project team and then drafting and negotiating the s106 Agreement with the council in a proactive and cooperative way that was targeted to respect the desired build period and opening of the new premises
- We acted for a College on the development of a new campus building on a vacant city centre brown field site with a particular focus on vocational educational offering and a vital part of the redevelopment of a derelict, strategically important part of the City. Our involvement included acting on the College’s behalf to enter into option and lease arrangements with the Homes & Communities Agency (the freehold owner of the site), full site due diligence, lease and easement arrangements relating to utilities and entering into lease arrangements for the solar panels on the roof of the new campus building
- We advised a London College on their role as a partner on a development of a new Campus worth £21m. The Campus will include a new College, a Technology Hub, a free school and a special school to be funded by the sale of residential land, a local authority loan and EFA grant money. Our advice has included undertaking due diligence on the property elements on behalf of both the Council and the College, negotiating documentation in relation to the acquisition of the land from the College, the loan to the College, the surrender and acquisition of new rights over adjoining land and the development agreement with the EFA
- Advising a College in relation to a S.106 Agreement for the residential development of part of their land
- Advising a College in relation to a S.106 Agreement for the residential development of their former site
- Acting for Sunderland College with all aspects of managing its campus and property portfolio including landlord and tenant matters; arrangements with funders; and advising on development proposals
Employment
- We acted for one of the largest Groups of FE and HE Colleges in the UK in relation to HR and employment law matters. Our advice has been wide ranging and has included strategic matters, ad hoc advice and the defence of Employment Tribunal claims
- In terms of strategic advice, we have advised on matters such as: Union negotiations; threatened strike action in London colleges and how to alleviate the effects of this; large restructures; the closure of the training companies; and terms of supply with employment agencies and introducing standard terms to alleviate possible safeguarding issues. Ad-hoc advice involves us being available at short notice to advise frequently on sensitive and urgent HR issues
- We have defended a large number of Employment Tribunal claims including complex discrimination claims – we work closely with the Colleges colleagues to agree and implement strategies to defend the claims. We have also involved our colleagues in other teams where necessary. By way of examples, we have provided commercial advice and services when drafting standard terms of purchase with employment agencies and we have provided significant services from our colleagues in the commercial litigation team when defending High Court litigation for defamation style proceedings brought by a former employee against the College
- We have advised another College on all day to day employment law matters since 2013. The advice has included advice on performance management, restructures, conduct and attendance issues
- We worked with a North East College to develop a bespoke employment law qualification (with accreditation) for all line managers in the College which was also offered to employer clients of the College. This course was delivered by us and consisted of six sessions, with pre-reading, varied lesson styles, tests and a mock tribunal hearing
Litigation
- Acting for a national higher education provider in relation to numerous matters, including its defence of a defamation claim and thereafter, a separate negligence claim brought by a former teacher. The teacher was of limited means, so alternative dispute resolution processes were used to achieve an early settlement to prevent costs being incurred unnecessarily, protect the client’s interests and ensure there was no reputational damage. The client was fully appraised on the merits of its position from the outset, and subsequently advised in respect of the merits of a subsequent successful application to strike out the second claim and for summary judgment. We therefore controlled and removed the risk posed
- Acting for a University in relation to commercial/contractual and intellectual property related claims, arising from the University’s commercial and ‘spin out’ activities. One aspect of the case was particularly sensitive and had capacity to give rise to serious reputational issues. We ensured the client was advised fully as to the merits of the dispute and the potential costs consequences in order that senior management could be kept fully appraised. Our views on merits and information on costs were updated regularly throughout the case. We project managed the litigation to ensure staff involved were aware when contributions were required, so they could effectively organise their time. We utilised alternative dispute resolution processes to achieve settlement which secured the University’s interests, and ensured no reputational damage. The claims were settled in advance of trial, in a cost-effective manner
Construction
- We advised a University in relation to a £70m construction of a new student accommodation development comprising six accommodation blocks and ancillary construction. The blocks were of modular construction, with the modules being manufactured overseas and shipped to the UK for installation on site. The project involved complexities relating to the use of a foreign subcontractor for over half of the project value, along with the overseas construction and shipping of a large proportion of the building elements. We advised in relation to the drafting, negotiation and finalisation of the NEC3 form of Building Contract. This included advising in relation to comments received from the tendering contractors and the final negotiations with the University’s preferred contractor. We also advised in relation to the Consultant Appointments and the Novation of the Design Consultation Appointments to the Contractor
- We advised a University and its subsidiary development company in relation to the £8.5 new build development of an academic centre on the grounds of a Hospital. We advised in relation to the drafting and negotiation of the University’s Consultant Appointments (including initial letters of intent with the consultants), Novations of the Design Consultants to the Contractor and the drafting and negotiation of amendments to the JCT Design & Build form of Contract, including advising on the contractual clarifications received during the tender process from various tendering contractors. We also advised on the construction obligations in the Agreement for Lease, to ensure that the same were in line with the requirements of the Building Contract
- We advised a University and its subsidiary development company in relation to the £5.2m new build economics and entrepreneurship academic building on the University’s campus. This is a three story learning centre with a 160 seat lecture theatre, double height study centre complete with student café and a new University bookshop. We are advising in relation to the consultant appointments and the drafting and negotiation of an amended JCT Standard Building Contract without quantities. We have also advised in relation to a letter of intent
- We advised a London based multi-disciplinary University in relation to construction problems and delays on a flagship development at their London campus. This involved advising the client on the termination of the project manager & Employer’s Agent and the appointment of a suitable replacement consultant. Thereafter we worked with the client and the new consultant to resolve the issues on site and achieve practical completion. We then negotiated and settled a £6m final account claim from the contractor and the client’s claim for damages for delay, achieving a quick and cost effective resolution for the University which allowed it to progress with the rest of its estate development plans
- We have advised higher education clients on construction procurement issues and project structures. This has included advising on the applicability of the European Procurement Rules and the use of appropriate frameworks to assist in their development projects
- Acting for a University in respect of a £40-£60m refurbishment and redevelopment of the site of the School of Engineering which included preparing and advising in negotiations and completion of a full suite of construction documentation
- We advised a College in relation to the construction documentation for the development of a new landmark £30 million city centre campus. This was a state of the art 140,000 square foot development to cater for 2,000 students, and included advanced manufacturing and engineering facilities, a spa for beauty students, an 80-seat restaurant for catering and hospitality students, a flight cabin, and specialist facilities for those learning their trade in the construction industry. Our involvement included drafting and negotiating a schedule of amendments to the building contract, forms of consultant appointment and novations of the same to the contractor. We also advised the College on the construction-related provisions in other documents relating to the transaction, and dealing with ancillary construction-related queries and issues
- We advised a College in relation to the £20 million refurbishment and extension of an existing campus for the College. The extension included the construction of a new sports hall, alongside a new fitness suite, sports laboratories and teaching rooms. The project also included a performance hall, dance and drama studios, music recording studios and a digital film lounge, and enabled the College to greatly expand its facilities for teaching its sports curriculum and its range of visual and performing arts courses. Our involvement included drafting and negotiating a schedule of amendments to the building contract, forms of consultant appointment and novations of the same to the contractor
- We acted for a major further education college just outside the M25. The dispute arose early in construction of the building frame and concerned complicated issues of design and the suitability and approval of materials under Building Regulations. The dispute threatened the future of the whole £55m project and temporarily closed the site. We were able to work closely with the client’s team to negotiate and agree a multi-party settlement agreement between the parties to resolve the dispute, amend the contracts and enable the project to re-start and progress to a successful conclusion for the client
Health and Safety
- We advised a University in respect of contamination issues and contracts for the removal of contamination in relation to the medical academic facility referred to above