Coronavirus - Employment law update (Education) - the UK

• United Kingdom

• Coronavirus - Country overview
• Coronavirus - Workforce issues
• Education - Briefings
• Education - Coronavirus

04-03-2020

Overview

Our previous briefing on this topic (Coronavirus: Implications for Institutions) set out the main issues facing institutions when dealing with the CoVID-19 outbreak. In this briefing we address some of the more common questions which have been raised since our initial briefing.

We will also shortly issue a briefing on the implications for partnerships and contractual arrangements with other organisations.

In a situation of great uncertainty, institutions need to focus on supporting their employees and students by showing leadership; following government and other relevant guidance; and by acting fairly, reasonably and consistently.

General Principles

UK institutions should:

• Monitor and follow advice and guidance from relevant authorities such as the World Health Organisation (“WHO”); the NHS; the government and ACAS (Government guidance; ACAS guidance)

• Assess the risks faced by their employees, students and visitors and implement measures to mitigate those risks, paying particular attention to those who are or may be perceived to be vulnerable - such as those who are pregnant; with impaired immunity; on secondment or working or studying away from home; have a disability, mental health problem or special educational need; are under 18 years of age (including on campus crèches); or living in institution owned or managed accommodation

• Inform their employees, students and recognised unions and students’ unions about their proposed measures

• Review their need for flexible working and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved

• Review whether alternative methods of course delivery and assessment are practicable

• Review policies governing business and programme-related travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance

• Review attendance and monitoring requirements for international students

• Review relevant insurance policies and guidance issued by their insurers, and provide guidance to staff and students where they are responsible for taking out of their own insurance (e.g. re study abroad)

• Update contact details for staff and management, and review contact arrangements for students

• Devise arrangements for dealing with staff who have to travel abroad; students who have recently returned to the UK to continue their studies and staff/students who may be at particular risk of contracting CoVID-19; or who report symptoms and may have CoVID-19

• Consider contingency plans for significant disruption – for example, a forced closure of the institution or (for universities) a lockdown of some or all of the campus or campus closure and mitigation measures for cancelled teaching, disruption to the student learning experience and exams

An institution’s duty of care – what does the law in the UK say?

Employers in the UK have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including students, visitors and members of the public.

Regulations require employers to undertake a “suitable and sufficient assessment of the risks to the health and safety” of employees and anyone else who may be affected by the employer’s business (including students). This duty is a continuing one, and assessments must be recorded. The Regulations contain specific provisions in relation to the young and pregnant women.

Institutions should therefore consider whether their existing arrangements for protecting staff, students and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance and advice is issued by, for example, the government, Public Health England or the WHO. This would include conducting risk assessments to identify the likelihood of staff and students contracting CoVID-19 whilst at the institution (or on institutional-related activities such as teaching or studying abroad or students on placement) and appropriate measures to control that risk.

Institutions should inform employees and students about all social distancing and infection control measures they are taking and the extent to which they require their staff or students to adhere to these measures (such as personal hygiene, social distancing, self-isolation, etc). This may include signposting to appropriate resources for further information, confirmation of the appropriate steps to take in the event that a member of staff or student believes they may have contracted the coronavirus (including symptoms to look out for) and the provision of hand sanitisers (or other cleansing facilities) whilst on campus or in institution operated buildings and residences, and general signposting to an institution’s wellbeing support services for staff and students.

Institutions may also consider implementing measures to screen visitors to their premises, for example requiring them to certify that they have not recently visited a high risk area (making sure they are compliant with data protection requirements).

If an institution fails to implement appropriate measures then it will potentially leave itself exposed to employees and students asserting that they have grounds for refusing to attend work or courses, on the basis that doing so would place them or others in “serious and imminent danger”.

Institutions should consider implementing protocols (including in respect of processing special category data re health) to deal with employees and students under mandatory quarantine; who have self-quarantined; who have travelled to or from high risk destinations; who propose going on holiday to such destinations; or who appear to be at risk or are ill, potentially with CoVID-19.

Institutions should consider how their risk assessments and contingency arrangements align with those of relevant partners e.g. other institutions where students may be studying or staff seconded, or organisations at which students may be undertaking placements. Institutions may also want to liaise closely with partners and suppliers on the mitigation steps they are taking.

In addition institutions may wish to consider issuing separate communications and guidance for parents and guardians, particularly for younger students.

Institutions may wish to assemble a project team including members having expertise in employee relations; student academic and pastoral support services; marketing and recruitment; data protection; insurance; travel and events; communications and occupational health to work together on developing appropriate protocols.

Protocols will help to ensure consistent and reasonable treatment, thereby reducing the risk of constructive dismissal (from staff) or discrimination claims.

Institutions should keep under review events scheduled on campus eg open days and conferences, and working with and supporting students’ unions concerning similar events including sporting and other social events.

Where staff or students are asked to act as “buddies” (e.g. taking food to quarantined colleagues or peers), institutions should ensure that such arrangements are risk assessed to mitigate risk to all individuals concerned.

Institutions may wish to tailor their approach and response for specific staff and students with disclosed or suspected vulnerabilities.

In summary, institutions should consider, keep under review, and where appropriate implement, appropriate measures; explain those measures to their employees and students; and explain the steps they are taking to monitor the situation.

Business and programme-related travel – should travel be restricted?

Institutions may also consider implementing policies to minimise the risk of employees and students catching CoVID-19 in the workplace or on campus/in the institution, for example health screening questionnaires for staff members and students returning from abroad and delaying or cancelling non-essential business or programme-related travel and meetings.

Whilst the government currently advises against travel to Hubei Province and against all but essential travel to the rest of mainland China, Iran, and parts of South Korea and parts of Italy, it is not currently advising against travel to any other country/territory as a result of CoVID-19 risks. The government has published a list of countries affected by the outbreak (see CoVID-19 - specified countries and areas).

As the outbreak is spreading, institutions should assess the need for staff or students to travel abroad; their right to require staff or students to travel or work or study in specific locations; and whether additional measures are necessary to protect staff and students travelling on business or for programme-related reasons.

These measures may include contingency planning for the possibility of staff or students being quarantined or falling ill when travelling abroad. Institutions should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate and whether any exemptions apply.

In considering whether staff or students should still travel, institutions should consider the purpose of the travel and whether there is an alternative; the latest government and international guidance; guidance from their occupational health advisor; and available measures to mitigate risk.

Flexible working - can an institution require staff and students to work/study flexibly?

Institutions may need some staff to work flexibly, including asking staff to work from home or to perform different duties. Staff contracts may entitle the institution to require staff to work flexibly. If so, institutions should normally consult with staff before exercising their rights to require flexible working and should to listen sympathetically if staff have personal reasons why they cannot work flexibly.

If the institution needs employees to work outside the terms of their existing contracts then it will have to agree the flexible arrangements with the individual employee, or with a recognised union if collective bargaining is in place in relation to such terms.

If the individual (or a union on their behalf) refuses to agree these changes then, depending on the circumstances, it may be possible to impose them either following consultation or through a process of dismissal and re-engagement. If a recognised union is in place then the institution should take legal advice before proceeding to implement changes without the union’s agreement.

In any event, it is important that the institution can justify the need for flexible working and that it behaved reasonably and proportionately when implementing different working arrangements.

Alternatively, if the reason for flexibility is personal to the employee, in that the employee is at risk of having been infected, then the institution would have good grounds for requiring the employee to work from home, provided their enforced removal from the workplace lasts no longer than is necessary and they are provided with support.

In respect of students, institutions should consider the terms of their students contracts to see what their variation and force majeure (events outside an institution’s control) say about making changes to educational and pastoral delivery (e.g. changing location of classes, delivering services remotely or use of lecture-capture type arrangements), and what can generally be done to mitigate negative effects to students including in respect of the student experience generally. Consideration may also be given to amending relevant regulations such as those relating to attendance, assessment or mitigating circumstances, and for the potential for student challenges to be made under complaints procedures in respect of an institution’s preparedness and response to the current situation.

Staff who are unable or unwilling to attend work?

Some staff may be able but unwilling to attend work because they are concerned about contracting CoVID-19. ACAS guidance advises employers to listen to the reasons for their concerns and to try to find an agreed resolution. Where work can be undertaken from home, it may be possible to agree home working for a short period.

In other cases, such as site-based work or where staff are unable to work due to caring for dependants the institution will need to consider whether this is provided for in its policies. If not, it may be possible to agree that time away is taken as holiday or unpaid leave. The institution may be able to provide support and advice via an existing Employee Assistance Programme. However, if an agreed resolution cannot be found and an employee refuses to attend work without good cause, disciplinary action could be considered.

Before taking action, institutions should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees concern. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.

Other employees may be willing but unable to work because they are caring for dependants, schools are shut or their transport is disrupted. Employees have a right to request a reasonable amount of unpaid time off work to deal with domestic emergencies. Staff may also request flexible working, in which case the relevant statutory procedures would need to be followed. Again, the institution will need to consider the impact of any of its policies dealing with such eventualities.

If staff cannot attend work, are they entitled to pay?

This will depend on the reason for the non-attendance.

Staff who cannot work because they have been infected with CoVID-19 will normally be entitled to sick pay in the usual way.

Pay for staff members unable to come to work due to caring responsibilities, for example where schools are closed or where they are caring for sick dependants, should be determined in accordance with their employment contract and the institution’s usual policy, ensuring that all requests are treated in a reasonable and consistent manner.

Note that employees have a statutory right to take a reasonable amount of unpaid time off work to deal with domestic emergencies affecting their dependants, including unexpected disruption to arrangements for the care of their children.

The position of staff absent from work due to medically-advised self-isolation or quarantine is more uncertain. Any exclusion period should be reasonable and no longer than is necessary to establish that the person is not infected. ACAS recommends that employers treat this absence as sick leave or agree for the time to be taken as holiday, to avoid employees refusing to self-isolate or quarantine and coming to work where they could spread the virus. We understand that the government has advised that this absence should be paid in the same way as sick leave.

Institutions should decide how they intend to deal with such scenarios as part of their planning process. If they wish to require employees to use holiday in specific circumstances (for example, where employees have chosen to take holiday in a high-risk area and then have to self-isolate), this should be clearly communicated to employees in advance.

Reporting - Can an institution require staff or students to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Institutions are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff or students who are infected (or who are likely to be infected) from coming onto the premises. This may include, for example, health screening questionnaires for those returning to work from high-risk areas and training managers to spot symptoms of CoVID-19.

Individual contracts may permit checks or require self-declarations, as may some student contracts e.g. for students on professional programmes. A refusal to undergo a check in such cases when there are reasonable grounds for checking the employee’s or student’s health (for example, they appear ill or have been in a high risk area) may – depending on the contractual provisions - result in that employee or student being excluded from the premises or placement and possibly (for employees) being denied pay.

Institutions can request staff to report if they are infected or have been exposed to infection(and may consider making similar requests of students where it is judged to be reasonable, necessary and proportionate to do so). However, under data protection law, information about an individual’s health counts as a ‘special category’ of personal data which may only be processed in limited circumstances. The processing of this information (for instance for what and how it will be used and with whom it will be shared – as strictly necessary) should be made clear (this may involve reviewing and updating privacy notices for staff and students) and institutions should ensure that the processing is necessary and appropriate for the stated purpose and is carried out in a proportionate manner. Maintaining the security of the personal data will be fundamental.

Institutions must be careful to avoid unlawful discrimination which might arise if (for example) employees or students with a particular nationality or ethnicity are singled out for checks or, in the case of disability, there is a failure to make reasonable adjustments. Institutions may wish to consider the advisability of equality impact assessing any new policies, plans or protocols implemented in response to the outbreak.

If there is a decreased requirement for staff due to the CoVID-19 outbreak, can institutions require employees to take annual leave during a closure period?

Institutions can designate the dates on which an employee takes annual leave, provided the appropriate notice is given under their contract and the Working Time Regulations 1998. However, it would be important to consider the effect of this on students and whether the delivery of educational and pastoral services could take place in some other way.

What other contingency planning steps should institutions be taking?

Effective planning is key to ensuring business continuity and the protection of employees, students and visitors. In addition to the above, institutions should:

• Create a senior team to co-ordinate monitoring government and other advice and guidance, implementing measures and providing information and support to staff and students with clear reporting to governors

• Devise an appropriate communications plan to keep staff and students fully informed, even when they are absent from work or their studies, together with provision of emergency contact details

• Devise an appropriate communications plan to keep relevant third parties such as placement providers, institutional partners and parents and to respond to press interest and manage any potential reputational impact

• Ask employees and students to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention

• Train managers on the institution’s measures and provide them with information to identify and respond to risks, as well as providing support and training on key facts and risks

• Consider alternatives to travel such as using videoconferencing or webinars

• Identify and track employees and students who are abroad and consider appropriate measures to support them

• Identify key roles in the institution which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working)

• Consider alternative ways of delivering services, for example, recording lectures or delivering teaching by video/Skype

• Consider any measures necessary to sustain widespread home working

• Review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility

• Review relevant student regulations, policies and procedures and student and accommodation contracts

• Consider impact and resourcing of staff and student wellbeing and pastoral services (including for increased demand) and triage and external signposting

• Consider how any temporary shutdowns of premises might be managed

• Review their insurance coverage

• Consider their stance on requests to work or study flexibly and on self-isolation, quarantine and sickness and ensure that it is reasonable, fair and applied consistently.

Where can guidance from the UK government and international bodies be found and monitored?

The UK government’s website provides the latest official information on CoVID-19 in the UK - https://www.gov.uk/guidance/wuhan-novel-coronavirus-information-for-the-public

The government has also published ‘Guidance for educational settings’ - https://www.gov.uk/government/publications/guidance-to-educational-settings-about-covid-19/guidance-to-educational-settings-about-covid-19

The World Health Organization’s information on the CoVID-19 may be found here: https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Other useful links for employers are as follows:

• Latest travel advice on GOV.UK

• coronavirus on NHS.UK

• Find your local PHE health protection team on GOV.UK

If an institution has a campus or partnership operation in an affected area, what additional steps should be taken?

Institutions operating in affected areas should comply with local regulations and guidance from international bodies such as the World Health Organisation. They may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees or students are suspected to be ill.

Beyond compliance with local laws, institutions should ensure measures are taken to properly assess the risks to staff and students (including reviewing collaboration contracts and who’s responsible for what) and the impact on business continuity and should adapt their plans accordingly.

Our extensive global footprint and our team of specialist education lawyers means that we are well placed to help institutions, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.