Section A - Setting up the activity
Q1: What is meant by student activity abroad in the context of this
A1: This encompasses all types of activity e.g. study, placement, medical
elective, intensive programme, field trip etc.
Q2: What liability do institutions have generally with respect to student
A2: There is the contract with the student to deliver in accordance
with the terms of the agreement (prospectus, website, promotional materials,
charter etc). In addition there is a sufficiently close relationship
between the university and the student (proximity) for a duty of care
to be owed.
This means that the normal law of negligence applies - a duty of care
(acting as a reasonable person acting in that capacity would) is owed;
if there is a breach of duty of care (lack of reasonableness) and damage
results, then there is liability. This also relates to vicarious liability
(employer liable for the acts of employees "acting in the normal
course of employment). There is liability for negligent statements.
The extent of the duty of care an institution has for student activity
abroad will vary according to the extent to which it undertakes actively
to provide placements, as opposed to sanctioning those arranged by students.
The greater the degree of institutional involvement in the placement,
the greater its duty of care.
The recent decision in McLean v The University of St Andrews heard
in the Scottish Court of Session (25/02/2004) to a large extent confirmed
the orthodox view regarding university liability. It is generally acknowledged
that a university does owe a duty of care to those it is reasonably
foreseeable may be affected by its acts or omissions. The difficult
analysis is to determine where the boundaries of that liability lie.
In the McLean case it does appear to reinforce the notion of boundaries.
The university will be liable for that which it is responsible for if
the duty of care is not met and damage results. The university will
not be liable for those things "outwith University control"
(para 10). If a person "removes themselves" from the duty
of care then this is beyond the scope of the duty of care.
Universities will no doubt look at this case, place it in the overall
context of negligence and arrive at the conclusion that care must be
taken, responsible and robust procedures must be in place and a responsible
attitude maintained BUT given all of this activities, placements, field
trips, study exchanges, joint programmes etc can be continued. Normal
risk assessment procedures plus a realistic mapping of the boundaries
should result in the duty of care being fulfilled.
Q3: Who is responsible for students while undertaking activity abroad?
A3: The home institution will retain the prime responsibility because
the student remains registered with it. However the inter-institutional
agreement should detail who is responsible for what during the period
abroad. Both institutions will owe a duty of care including for the
briefing and per-departure documentation. The matter is complicated
by the intervention of the local jurisdiction, and host institutions'
Q4: Should there be a written agreement between the partners of the
university with the university regarding the activity?
A4: Yes. It would be sensible to have documentary evidence of any agreement.
This also matches best practice and ensures compliance with the various
Assuming that whoever negotiates the agreement and signs the agreement
does work for the university, or acts on its behalf in some way and
is known to do so by the other party, then it will be difficult for
the university to disown the agreement even if its own internal procedures
have not been followed.
Q5: What sort of things should the agreement cover?
A5: It is necessary to know exactly who is responsible for what both
in terms of the normal operation of any collaboration but also in the
event of any accident or dispute between any of the parties. It should
make clear whether, and how, services such as accommodation and pastoral
support will be provided by each party.
The students should be briefed about all relevant parts of the agreement
so that they are aware what is and is not available, and which institution
is responsible for which aspects of their period abroad.
Q6: Who are the parties to the agreement?
A6: There will be a variety of partners to the agreements in place.
With student exchanges there will be the university to university agreement
detailing such things as waiving of fees (and which fees), credit transfer,
numbers involved etc, the student under English law may also be a party
to this agreement under the Contracts (Rights of Third Parties) Act
1999 unless this has been contractually excluded by the institution
(this is easily done and the Act makes provision for this to be done).
If rights of third parties under the Act are not excluded then the student
may take action in the courts to enforce the agreement. The Act does
not apply in Scotland. With work placements there may be a contract
between the university and the employer. Separately, there will also
be the contract between the university and the student.
Q7: Can we limit or exclude liability in any way?
A7: This is not easy to do because the courts will almost certainly
view the position as being between a stronger party (the university)
and a weaker party (the student), this disparity of bargaining power
will mean that any clause will not be viewed with any enthusiasm. The
Unfair Terms in Consumer Contracts Regulations 1999 require plain language
and good communication of terms even if they are to be allowed (which
in this case is doubtful). This further limits the possibility of having
a clause that has any effect.
Excluding liability for death or personal injury is not possible (Unfair
Contract Terms Act 1977); excluding liability for other damage caused
by negligence in a consumer contract (which this almost certainly is)
must be reasonable. If you are used to dealing with American universities
do not imagine that because they use extensive limitation clauses that
UK universities would also get away with this. This is simply not the
Section B - Pre-departure activity
Q8: Should students be briefed prior to departure?
A8: Yes, it is good practice to ensure students receive suitable preparation
in the lead up to their departure, through a range of means which might
include newsletters, handbooks and pre-departure briefings. This should
be done to ensure that the Institution meets its responsibilities, both
contractual and regarding the duty of care, meets the benchmark of good
practice (e.g. the relevant section of the QAA Code of Practice) and
provides a good service to its students. This is a matter of preparing
the students well for the experience and ensuring that the university
has acted in a proper manner, thus minimising the possibility of being
sued for negligence.
Q9: What aspects of the activity abroad should the institution cover
in its briefing?
A9: The briefing should be as comprehensive as possible on both academic
and pastoral matters (though see below on the question of staff advising
within their areas of competence). The former should include matters
relating to the home study programme and the impact of the activity
abroad, credit accumulation, grade conversion, assessment, re-assessment
procedures, choice of modules etc. The latter should include accommodation,
travel, safety, local criminal law matters, immigration requirements
for UK and other nationals, etc.
Q10: Should there be some written acknowledgement by the student of
A10: This is sensible to avoid any claim that the student was not briefed
or was inadequately briefed (there will be proof of the briefing received).
Q11: What is an adequate briefing?
A11: One that covers the main points that a reasonable professional
would expect to be covered (academic and pastoral) in a competent way
- having sought advice, for example Foreign Office advice for a country
that has been experiencing difficulties. The QAA Code of Practice section
on Placement Learning should be complied with. It is advisable to ensure
students are given key information in written form to take away. This
also then ensures that students who are unable to attend oral briefings
in person can be given the information.
Institutions should inform students of the Agreement with the partner
and what it entails.
Q12: What liability is there regarding the briefing issue?
A12: Assuming that the member of staff doing the briefing is acting
within the course of their employment the university (as the employer)
will be vicariously liable for the acts of the employee in terms of
negligent statements. Staff must ensure that they only advise within
their competence, and institutions must ensure they provide staff with
adequate training to cover the necessary topics.
The university must also ensure that it is fulfilling its contract
with the student regarding provision of the course as advertised and
Q13: When the student returns should feedback be collected and processed
regarding the experience?
A13: Yes this would be sensible in terms of showing that the experience
is being evaluated and that the results of the evaluation inform future
decisions about the activity
Section C - General legal issues
Q14: What contract exists between the student and the sending and receiving
A14: The contracts will be the existing contract between the student
and the home institution and a contract between the student and the
host institution created at the time of registration with the host.
The contracts will include all statements made in prospectuses, course
handbooks, websites, promotional materials, oral statements as well
as written etc.
Q15: What law will these contracts be subject to?
A15: Normally the relevant law is that of the place where the contract
is to be performed. The student will therefore normally be subject to
the law of the host country for the contract with the host institution
whilst the home contract will still be subject to the home country law.
Agreements across legal jurisdictions (see Q23) can always cause problems.
It is not uncommon in commercial agreements for there to be a "choice
of law clause" but of course both parties have to agree to this.
Q16: What standard of care is expected of the university in order to
avoid an action for negligence?
A16: The standard of care of a reasonable professional acting in that
capacity. The onus is on the employer to ensure that staff are adequately
trained for the function that they are carrying out.
Q17: In terms of health and safety what should be done?
A17: The obligations regarding this will, in principle, fall on the
host institution. It is advisable for the sending institution to advise
students of this fact and stress the fact that it is advisable to have
insurance cover. However, care should be taken in any literature and
briefing to make sure that extravagant claims are not made regarding
facilities, working environment etc.
As with many things accurate information is the key. To be able to
give this the university must take reasonable steps to ensure that it
is sending the students to a safe environment, for example with lab
work the sender should assure themselves that the labs in which students
will work conform to adequate safety levels.
Regarding social activities the students are adults, the university
is not in loco parentis and the students will make their own decisions.
Q18: In what ways does the law on data protection affect this activity?
A18: The university must comply in the normal way regarding the storage
and use of data on a student BUT in addition IF the data is to be
sent outside the European Economic Area
(EEA) then the university must also ensure that the state to which
the data is being sent has the same standard of rules as the EEA.
Q19: What data might this include?
A19: The most likely is to be student academic records, but it could
include health records (for placements etc).
Q20: What other legislation might impact on activity abroad?
A20: The Human Rights Act 1998, the Sex Discrimination Act 1975 and
the Disability Discrimination Act 1995 as amended by the Special Educational
Needs and Disability Act 2001 will need to be taken into consideration.
This will be in particular with regard to ensuring equal opportunities
and the series of implementation dates for the 2001 Act (through to
2005). Examples of relevant guidance from the Disability Rights Commission's
Code of Practice are included as an Appendix
to this document.
Students in England and Wales can bring complaints to the
Office of the Independent Adjudicator for Higher Education ("OIA"),
provided that they have first exhausted all internal complaints procedures.
Complaints about colleges and universities in Scotland are dealt with
by the Scottish Public Services
Q21: What about the host country law for the students?
A21: The students will be subject to the laws of the host state. This
will encompass their academic life, for example rights of academic appeal,
health and safety, data protection etc; the wide range of criminal law
of the community, for example drink, drugs, driving, breach of the peace
etc; the consumer laws, for example regarding credit, contracts etc.
Q22: What briefing about the host laws should be given to the students?
A22: Care should be taken to ensure that the students know that they
are subject to the host laws. Beyond that there is the matter of judgment
regarding how much specific accurate information can be given without
risking giving the wrong advice, whilst at the same time adequately
briefing the students. Perhaps give exemplars of differences, for example
the local age required to legally drink alcohol or the age of consent
(fairly easily verifiable facts) whilst stressing the need to get accurate
Q23: What aspects of the host country law will affect the institution?
A23: Care should be taken regarding a number of issues, for example:
With the contracts entered into - which jurisdiction are they subject
If reference is made to other documents (Codes of Practice, legislation
etc) - are the full implications of these realised?
If disclaimers are used - what effect might this have on the liability
of the sending (home) institution
Appendix 1- Examples
The following examples are drawn from the Disability Rights Commission Draft Code of Practice for Post 16 Providers - published 17th. December
2001. (Successor document available from the Equality and Human Rights Commission.)
As part of an Art History course at a university in Great Britain,
students spend a month in Italy on a programme run by an Italian university.
It is the British university's responsibility to ensure that the Italian
university can provide access to a disabled student who uses a wheelchair.
Students on a language course spend two months studying at a partner
institution in Europe. Despite the work that the British institution
has done with the European institution to explain the needs of disabled
students on the programme, disabled students continue to complain that
they have been discriminated against during their stay. The British
institution is responsible for preventing the discrimination continuing
or recurring. In this case, the British institution might decide to
sever its links with that institution, and find an alternative partner.
USHA/UCEA (2011) Guidance on Health and Safety in Fieldwork
including offsite visits and travel in the UK and overseas
© UKCISA. Last updated 25 August 2010