Dundee sheriff dismisses law student’s case against university over handling of complaint made against her

About this case:

• Citation:
  [2022] SC DUN 40
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Gregor Murray

Lisa Keogh, who had a behavioural complaint made against her in March 2021 which was ultimately not upheld, averred that the University Court of Abertay University had breached the Equality Act 2010 in its handling of the complaint process. The defender advanced a preliminary argument seeking to dismiss the action before proof on the basis that it was bound to fail.

The case was heard by Sheriff Gregor Murray. Crabb, advocate, appeared for the pursuer and C O’Neill KC for the defender.

Hostile and aggressive

In 2021 the pursuer was a final year law student at Abertay, during which time she took courses titled “Gender, Feminism and The Law” and “Human Rights”. On 19 March the University received a complaint about the pursuer’s behaviour during a seminar a few days earlier as well as other instances during both courses. While the complaint was submitted by one student, it was known to incorporate allegations made by several others.

The complaint alleged that the pursuer had made inappropriate contributions in module discussions that were perceived to be hateful and discriminatory by other students, and made allegations of extreme racism, sexism, and transphobia. She was alleged to have referred to women as “the weaker sex”, asserted that racism was not real, and repeatedly referred to trans women as men. During a seminar on 15 March, it was alleged she had become hostile and aggressive, shouted at her tutor, and referred to her classmates as “calling her sons rapists”.

On 22 April 2021, the pursuer was interviewed by an investigator appointed by the defender. She denied making some of the comments attributed to her in the complaint but otherwise maintained that it related to her having expressed gender critical beliefs in class. The complaint was referred to the Student Disciplinary Board, which at a meeting on 7 June 2021 decided not to uphold the complaint.

It was averred by the pursuer that her gender critical beliefs were a protected characteristic within the meaning of the Equality Act 2010. As she would not have been subjected to the disciplinary proceedings were it not for those beliefs, the defender had directly discriminated against her. As a result of those events the pursuer had suffered injured feelings, stress, anxiety, and sleeplessness shortly before her final exams, for which the defender was accountable.

For the defender it was submitted that the pursuer’s case lacked specification on any breach of the Public Sector Equality Duty. It could not be guilty of discrimination simply because it had investigated a complaint, and neither mental distress alone nor an unjustified sense of grievance were sufficient to meet the detriment threshold.

Obliged to investigate

In his decision, Sheriff Murray began by observing: “The timing and nature of the complaint put the University in a difficult position: while it was obliged to investigate, the complaint was made shortly before the pursuer and at least two of the complainers were due to sit final examinations; some of the allegations were serious, complex and disputed and others related to apparently differing expressions of gender belief during a recent class. Delaying investigation until after the final examinations risked distressing at least two of the complainers during a stressful period and might also lead to their recollections, and those of the pursuer, becoming stale.”

On whether the pursuer had been subject to detriment, he said: “In the context explained above, the University Code obliged the defender to investigate the complaint. The number, nature and timing of the allegations, and the involvement of at least three final year students who were about to sit examinations, all placed the University in exactly the type of ‘tricky territory’ that entitled it to investigate immediately. Thereafter, again in the context explained, the Code obliged the Panel to refer the complaint to the Board: that reason, contrary to the pursuer’s averments, was unrelated to her gender critical beliefs.”

He continued: “While I accept gender critical beliefs are protected for the purposes of [the Equality Act], the pursuer’s averments only take her over the first of three hurdles: she does not aver that she was treated less favourably than other students and, while a comparator might not be necessary, she does not narrate even a hypothesis upon which her case could be founded. In those circumstances, that her beliefs are protected becomes irrelevant.”

Sheriff Murray concluded: “I also accept the defender’s criticisms of the pursuer’s averments of indirect discrimination and breach of her Convention rights. In each instance, the pursuer’s averments amount to bare statements which do not give fair notice to the defender of her case.”

The sheriff therefore concluded that the pursuer’s averments were irrelevant and lacked specification, with the action falling to be dismissed.