There is a student-staff divide in health and safety law. Why?

A familiar reassurance is offered whenever concerns are raised about student wellbeing, safeguarding, or preventable harm in higher education.

We’re told that the law already has this covered – that universities are already subject to an extensive set of legal duties and responsibilities.

From there, the debate is gently redirected. If harm occurs, the problem is said to lie not in law but in culture, resourcing, or implementation.

Each individual element, and the legal patchwork as a whole, is presumed to be sound and sufficient.

This response functions like a comfort blanket. It settles unease without examining whether the protection being invoked does what it’s assumed to do.

If extending negligence law to include clear statutory responsibilities is dismissed as too radical, the appropriate response isn’t reassurance but scrutiny.

We must look closely at the alternative statutory duties already relied upon – particularly health and safety law – and, starting with that part of the legislative jigsaw, ask a harder question. Why does a statute designed to prevent harm appear to weaken when applied to students?

Better safe than sorry

Wellbeing and welfare are often treated as interchangeable with safety, but they’re not – wellbeing and welfare are aspirational, inviting care and support, while safety is a baseline that marks the point at which concern becomes non-negotiable. In law, safety exists precisely to require action before harm occurs.

If responsibility is to operate upstream of tragedy, the focus can’t remain solely on the minimalist mechanism of post-event civil claims under common law. Negligence rests on a general negative duty not to cause reasonably foreseeable harm through wrongful acts or culpable omissions, but it doesn’t impose a broader obligation to design institutional arrangements so that harm is prevented in the first place.

Responsibility and breach are determined retrospectively, through litigation, after harm has already occurred – carrying no mandate requiring institutions to organise their systems with prevention in mind.

Parliament hasn’t enacted a general positive duty requiring universities to take active steps to ensure student safety, and the courts have been cautious about extending negligence law into that territory. In those circumstances, attention must turn to how existing safety legislation operates in the higher education context.

A serious commitment to safety must therefore include examining how the broader architecture of the Health and Safety at Work etc. Act 1974 is applied to students – a statute expressly designed to manage risk before injury occurs.

Same room, different rules

Under health and safety law, the inequality in protection afforded to staff and students is nowhere more visible than in the lecture theatre. The person at the lectern and the person in the front row occupy the same physical space and may face the same institutional pressures. Yet the law assigns them to different categories.

For the lecturer, the university is a workplace. Health and safety legislation imposes a statutory, anticipatory duty on employers to ensure, so far as is reasonably practicable, the health, safety, and welfare of their employees. That duty isn’t confined to slipping hazards or faulty wiring – it extends to the design of the work itself. If workload becomes unsustainable, if management systems become oppressive, or if organisational culture turns toxic, the law expects institutions to intervene before breakdown occurs.

For the student sitting just feet away, the legal character of the room shifts. The environment is treated not as a workplace but as a service, with the university seen as delivering education to a learner rather than organising work for a participant within a regulated system. Responsibility is framed around ensuring that the service itself isn’t delivered in a way that causes direct harm, rather than examining whether the underlying structures – assessment regimes, disciplinary processes, support pathways – are designed safely in the first place.

Students therefore fall within the broader category of non-employees in a university setting, alongside contractors and other members of the public.

Existing legislation does impose duties toward non-employees – employers must ensure, so far as is reasonably practicable, that those affected by their undertaking aren’t exposed to dangers arising from it. But this protection is narrower in conception. It was designed to guard against immediate and visible hazards – the falling brick, the exposed wire – not to interrogate the cumulative psychological strain that can be generated by high-stakes assessments, disciplinary processes, or unclear fitness-to-study procedures.

The upshot is a structural asymmetry. For staff, system-generated psychological harm is recognised as a workplace safety issue requiring preventative oversight. For students, exposure to comparable institutional pressures sits within a thinner category of hazard.

Two participants in the same institutional community therefore receive different levels of protection under health and safety law. The question isn’t whether staff and students are identical, but whether institutions should bear an equivalent level of responsibility for the safety of both within a shared educational setting where the systems they design and control create unsafe conditions.

Lessons from Sweden

This gap in our law isn’t the product of technical necessity. It emerged during a period of transition in the early 1970s, when the age of majority was lowered and students were formally recast in law as autonomous adults. Legal categories shifted quickly, but cultural expectations of institutional responsibility evolved more gradually – universities were still widely assumed to bear responsibility for the conditions under which students studied.

In that context, students were placed in a different legal category without a corresponding reconsideration of how institutional systems might create risk. Sweden, legislating in the same era, took a more direct route. Its Work Environment Act of 1977 was built around prevention – the structured management of conditions that could cause harm. From the outset, it treated students undergoing education or training as equivalent to employees for the purposes of health and safety, recognising them not merely as recipients of a service but as participants in a regulated system.

The consequences were significant but not radical. Universities became responsible for the organisation of study in the same structured way that they were responsible for the work environment – assessing workload, scheduling, supervision, and institutional processes through the lens of safety. Students were also given the right to appoint safety representatives, ensuring that they had a formal voice in how safety was embedded in the delivery of education.

Extending the legislation to students didn’t disturb its underlying proportionality. The statutory obligation remained limited by what is reasonably practicable, and it didn’t transform universities into therapeutic institutions or undermine academic freedom. It brought students within the same preventive logic embedded in the legislation for staff.

What changed wasn’t their intellectual purpose, but the seriousness with which educational provision is managed. The result hasn’t been a “nanny state,” nor a collapse of academic standards – Swedish universities have continued to fulfil their academic mission.

The tool already exists

If we were to follow the Swedish model and bring student protection more clearly within health and safety legislation, the statutory route for doing so is already available. Approved Codes of Practice provide a way of translating broad statutory duties into practical, sector-specific expectations.

Crucially, such codes aren’t drafted in isolation. They’re developed through consultation with those who operate within the sector – institutional leaders, safety professionals, staff representatives, and student bodies. They reflect operational realities, with standards shaped by those who lead, teach, and study within the sector, as well as by regulators.

A code doesn’t invent new obligations – it articulates how existing safety law applies in a particular setting and clarifies what is reasonably practicable in practice. In higher education, that could mean requiring universities to examine whether their own internal processes – disciplinary hearings, abrupt withdrawal of support, escalation procedures – create conditions that jeopardise student safety. It could provide clear and lawful guidance on information-sharing in moments of acute concern, reducing the tendency to treat data protection law as an automatic barrier to timely intervention.

It could also require that assessment regimes, fitness-to-study pathways, and progression or dismissal processes are organised with psychological safety in mind.

Such a code wouldn’t micromanage teaching or dictate academic content. It would regulate institutional systems – the machinery through which decisions are made, risks are escalated, and support is withdrawn or maintained. Nor would it impose absolute liability – as elsewhere in health and safety law, duties would remain bounded by what is reasonably practicable.

The government has recently stated that it has no plans to publish statutory guidance or a code of practice on a “duty of care” owed by higher education providers. That position concerns civil liability. It doesn’t address how existing safety legislation should operate in the student context. The question isn’t whether universities require a new moral obligation, but whether the statutory safety duties already governing workplaces should be applied with equal strength and transparency to those in the front row.

The nanny myth

Much of the resistance in recent debates on the need for greater student protection has been directed at proposals for a statutory “duty of care.” Those objections – fears of infantilisation, of creeping paternalism, of floors becoming ceilings – were framed against the idea of creating a new and expansive obligation in negligence. The argument here is different – it concerns the application of established health and safety standards to the way universities organise the student environment. Once the focus shifts from fear of litigation to the design and management of institutional systems, the earlier objections look considerably weaker.

Any claim that statutory standards would “infantilise” students rests on a misunderstanding of what safety law does. Safety regulation doesn’t treat adults as children – it treats them as participants in structured environments. We don’t accuse an airline of infantilising its pilots when it mandates rest periods to prevent fatigue, and we recognise it as a basic condition of safe operation.

In the same way, requiring that disciplinary processes are fair, escalation pathways are clear, and assessment regimes aren’t structurally overwhelming isn’t “nannying.” It’s recognising that institutional systems – however well-intentioned – can generate serious danger if poorly designed.

Nor does this approach threaten academic freedom. Academic freedom protects the right to question, to test received wisdom, and to pursue difficult ideas – it doesn’t confer immunity on administrative systems. Regulating how universities manage workload, escalation, crisis response, and withdrawal of support doesn’t dictate what may be taught or researched. It addresses the conditions under which teaching and learning occur. A preventative safety model governs systems, not scholarship.

Likewise, any claim that statutory standards create a “floor” to which institutions simply sink – that once a minimum is defined, ambition would give way to mere compliance – is similarly misplaced. All safety law operates by setting floors, and minimum standards for ventilation, equipment, staffing, or training don’t prevent excellence – they prevent catastrophic failure. The absence of a standard doesn’t produce aspiration; it creates inconsistency and confusion.

In safety-critical environments, variability is itself a source of danger. Universities would also remain free to exceed baseline requirements, to innovate, and to develop sector-leading practice. What they wouldn’t be free to do is organise courses, assessment systems, and student management processes in ways that undermine student safety.

From autopsy to prevention

The law readily recognises the danger of a falling brick in the quad. It’s far less comfortable recognising the danger created when a student is crushed by the cumulative weight of a systemic failure – a mishandled disciplinary process, an unclear fitness-to-study pathway, or a course design that generates unsustainable pressure.

Staff benefit from multiple layers of protection – they’re owed an established common law duty of care, they’re protected by structured, anticipatory obligations under workplace safety legislation, and their working environment must be organised so that it doesn’t create danger. Students, occupying the same institutional space, don’t stand on an equivalent footing.

This isn’t to argue that students should be treated as employees. It’s a proposal that where institutions develop and control complex systems – whether of work or of study – they should bear comparable responsibility for the safety of those whose working and learning lives depend on how those systems are designed. If the way universities organise employment must not endanger staff, there’s no principled reason why the way they organise study should not attract equivalent statutory protection.

The continuing debate about a statutory duty of care remains important. But even without resolving that debate, it’s clear that the preventative logic already embedded in our safety law hasn’t been applied in a way that affords students equivalent protection.

Students don’t need sentiment or mollycoddling. They need the same basic seriousness we already extend to the person at the lectern – a statutory shield against systems that generate avoidable harm. At present, students are legally indistinguishable from someone who has wandered onto campus to use the café or visit the gift shop. If existing protections were truly sufficient, we wouldn’t see the same systemic failures recurring decade after decade.