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Coronavirus - Employment law update (Education) - the UK

  • United Kingdom
  • Coronavirus - Workforce issues
  • Education - Briefings
  • Education - Coronavirus

31-01-2020

 

Wuhan coronavirus: implications for institutions

Overview

The spread of the Wuhan coronavirus gives rise to the same issues for organisations wherever they are based or operate around the world. These include assessing the risks faced by their staff, contractors, students and visitors whilst at work, studying and living on campus or in halls, and developing measures to control those risks; complying with local laws and guidance; identifying how much flexibility they have to adapt their working arrangements to ensure business continuity; and special measures to protect vulnerable employees and students.

Whilst the issues are the same globally, the solutions will vary from country to country, depending on local circumstances and guidance.

Institutions should regularly monitor the situation, taking guidance from governments in their locations and from international bodies such as the World Health Organization:  https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Institutions 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.

Institutions’ duty of care to staff, students and visitors

Institutions should consider whether their existing arrangements for protecting staff, students and visitors from harm take account of the risk of harm arising from the coronavirus. This may entail conducting a risk assessment to identify the likelihood of individuals contracting the coronavirus whilst at work or on a programme of study or programme-related activity (including placements) and appropriate measures to control that risk. Additional thought should be given to considering the number of staff and students who may have recently returned from travel abroad, from any of the countries or areas which are now known to have confirmed cases of the coronavirus, as this will impact the nature and proportionality of the response.

Special measures may be appropriate for dealing with vulnerable staff and students such as those with impaired immunity, who are pregnant, who have a public-facing role, who are on secondment or working or studying away from home, especially if they are working abroad, or who have mental health problems, a disability or other support need. The scope of the risk assessment should take account prevailing government guidance and from international bodies such as the World Health Organization.

Having undertaken this assessment the institution should consider implementing a proportionate response, which may need to be reviewed regularly including if the outbreak continues to spread, or new government guidance is issued.

For staff this may include reviewing workplace policies – or issuing specific communications for this incident – on issues such as health reporting; office and personal hygiene; social distancing and the use of protective equipment where necessary.  For both staff and students, 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 whilst on campus or in institution operated buildings and residences.

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.

Flexibility

Institutions may need to adapt their  arrangements for work and providing services to improve operational resilience in case of staff absences. First steps may include assessing the institution’s rights to require staff to work flexibly, perhaps redeploying them to different locations or asking them to perform different duties.  Institutions should also review their student and student accommodation contracts to identify what services they have promised to provide and in what manner and whether proposed changes to the nature and delivery of services is provided for in variation and force majeure (events outside and institution’s control) clauses.

In respect of staff, this may entail auditing staff contracts and workplace policies to identify the degree to which workers can be required to work flexibly by changing location or undertaking new duties (for example to cover for an absent colleague), and with a view to mitigating detriment to students in respect of the institution’s provision of educational and pastoral services and support. Any changes to working arrangements may require a prior risk assessment together with support and adequate training. Other measures might include asking (or if entitled to do so, requiring) staff to work overtime or to work remotely.

If staff are reluctant to work more flexibly the institution may need to consider whether it can require them to do so by imposing changes to their working arrangements. Local laws may require consultation before change is imposed, and a failure to consult may result in legal claims.

Staff may also seek additional flexibility from their institution if they have difficulty attending work, for example because they are caring for dependants, or schools are shut or transport is disrupted. In those circumstances institutions may owe contractual or statutory duties to accommodate staff requests for time off work, or flexible working, perhaps from home or another location.

In these situations institutions need to respond in a proportionate, reasonable and consistent manner, otherwise they may risk claims for discrimination or unfair treatment. Accordingly institutions need to plan ahead to identify where problems may arise and how they should respond, so that they can behave (and can be seen to be behaving) reasonably and consistently. A failure to do so will not only risk legal claims, it may also impact adversely on staff morale and so damage future employee relations.  

Institutions will also need to be flexible in relation to students who cannot attend lectures, tutorials or similar face to face events and consider the degree to which the learning experience can be delivered remotely.

Pay

Institutions will need to consider how they will respond to a range of situations including those where staff are willing but unable to work, because they are quarantined or unable to travel; or they are able but unwilling to work because they are concerned about the risks of travelling or being in the workplace.

In the latter case the institution’s ability to take action may depend on the extent to which it has implemented measures to address the risks posed by the coronavirus, otherwise staff may have grounds for refusing to work normally.  

Again, the key point is the need for institutions to behave proportionately, reasonably and consistently. In some cases local laws or government guidance might indicate when it is appropriate to continue paying staff who are absent, for example if they are quarantined.

For staff who are unwell, their contract or local laws will usually define their entitlement to sick pay. If this is dependent on standard medical certification for absence, institutions may need to anticipate how to respond if staff encounter difficulties obtaining medical certificates in the usual way.

Travel

Institutions should review how best to protect staff and students travelling on business or on programme-related activities (including placements), especially if they are travelling abroad, when tailored guidance and support may be appropriate. Further considerations include whether measures are in place to deal with staff and students being quarantined or falling ill when abroad. Can they be easily repatriated, or moved to a safer place? How will the institution’s travel insurance and employee liability insurance policies respond in those situations?

Institutions may wish to review whether travel is necessary, and whether, for example, meetings can be conducted by video link or programme modules or assessment undertaken by other means; and how they will respond if staff or students refuse to travel. Again, the key is to be proportionate, reasonable and consistent, which entails anticipating potential scenarios; devising legally robust and fair principles for dealing with them; communicating these clearly; and ensuring that managers are trained on those principles.

Immigration

Institutions who are sponsoring Tier 4 students will also need to consider the implications of any absence on their sponsorship duties.

Whilst there is a requirement to report where a Tier 4 student misses 10 consecutive expected contact points, this does not occur where the institution gives the student permission to miss a contact point. The sponsor guidance says that it is for the institution to decide whether it is prepared to support an absence. It gives the example of a student being ill but recognises that there may well be other circumstances where the institution wishes to give the student permission to miss a contact – this could include where the student was not themselves ill, but unable to travel due to restrictions. Institutions should, however, keep evidence in case they need to verify the decision to UKVI’s compliance officers.

In the case of a lengthy absence there may be additional considerations. The guidance states that if a student defers their studies after they have arrived in the UK and is no longer actively studying the institution may continue to sponsor a student for up to a maximum of 60 days providing it can continue to carry out its sponsorship duties and the student will be able to complete their course within their existing period of leave. In exceptional circumstances the institution may continue to sponsor a student for longer than 60 days, providing the student can still complete their course within their existing period of leave when they resume their studies. Evidence to verify this decision should be kept.

In relation to staff sponsored under Tier 2, employers must stop must stop sponsoring a migrant who is absent from work without pay for 4 weeks or more in total in any calendar year. There are exceptions to this, including where the unpaid absence is due to sick leave (though there a requirement to report this). There is no express exemption where the absence is due to the inability to return to the UK due to travel restrictions. We have raised this issue with UKVI who have responded that they are monitoring the situation to consider whether any specific policy solutions are needed, but in the meantime it remains open for individuals to ask for discretion to be exercised on a case-by-case basis in circumstances which are obviously outside of their control. As mentioned, however, these provisions only become relevant where the absence is unpaid.

Conclusion

Institutions should keep abreast of government guidance and adapt their plans accordingly. The key is to plan ahead and to show leadership, thereby enabling institutions to be well prepared to support their staff and students and to maximise the resilience of their operations. 

It will be crucial for institutions to have in place effective and robust communication strategies to keep staff and students, and parents, informed with appropriate signposting to further advice and guidance, and which provide for the dissemination of accurate, up-to-date and timely information.  This will be particularly important where students may be perceived as vulnerable, for example because they are under the age of 18, boarding, overseas or have a disability, mental health problem or other support need.

Institutions should also be alert to the potential for prejudicial treatment of Chinese students or staff or students or staff returning from China, including on social media, and take appropriate action where instances of bullying or other inappropriate behaviour is suspected.

 Our extensive global footprint and our team of specialist education lawyers means that we are well placed to help institutions to plan effectively, on both staff and student issues, should they wish to implement a risk assessment, adapt their working arrangements and undertake contingency planning.

For more information contact

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