Employment Eye: Focus on Higher Education - Summer 2021

Welcome to our Summer Edition of Higher Education Employment Eye. With all restrictions eased from 19 July 2021, this bulletin focuses on the main changes/legal updates that the Higher Education sector should be aware of this summer.

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Higher Education (Freedom of Speech) Bill

The historic bill was introduced in Parliament on 12 May 2021 - Higher Education (Freedom of Speech) Bill - Parliamentary Bills - UK Parliament, which will require universities to promote freedom of speech on campus and legal duties will also be extended to students' unions. The bill has passed its second reading, with 364 MPs backing the legislation and 216 opposing it.

This delivers on a manifesto commitment to strengthen academic freedom and free speech in higher education and aims to help protect the reputation of our universities as centres of academic freedom.

However, concerns have arisen over what the unintended consequences of this bill could be – for example, people who promote conspiracy theories or ‘alternative facts’ to speak on university campuses, and could leave institutions and student unions wide open to costly legal actions. Individuals would be able to bring civil claims against OfS registered institutions or Students' Unions for breaches of freedom of speech and/or academic freedom.

Some of the proposed changes also include that the bill will provide the Office for Students (OfS) with additional monitoring and enforcement powers, lead to the creation of a Director for Freedom of Speech and Academic Freedom and extend the application of duties to Students' Unions.

We recommend the HE sector monitors the progression of the Bill carefully.

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Forstater v CGD Europe – EAT conclusion on gender critical views

In June 2021, the EAT handed down their judgment regarding the Maya Forstater debate around “gender critical reviews”. Maya Forstater v CGD Europe and Others: UKEAT/0105/20/JOJ - GOV.UK (www.gov.uk)

Facts

In 2019, Ms Forstater’s contract at the Centre for Global Development (CGD) was not renewed following her being accused of using “offensive and exclusionary” language in tweets opposing the then proposed reform of the Gender Recognition Act to allow people to legally self-identify as the opposite sex.

These tweets were made outside of work, but raised by Forstater’s colleagues and labelled as “exclusionary and offensive”.

Employment Tribunal findings

She presented her case to the ET in 2019 arguing that her beliefs that a person's "sex" is a material reality which should not be conflated with gender or gender identity ought to be legally protected under the Equality Act 2010.

Tribunal ruled that her belief, being “absolutist” in nature and whereby she would “refer to a person by the sex she considered appropriate, even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment”, and was “not worthy of respect in a democratic society” and was “incompatible with human dignity and fundamental rights of others”. 

Employment Appeal Tribunal ruling

Forstater appealed the tribunal’s ruling and sought to fight her case that her views should in fact have legal protection.

The Employment Appeal Tribunal (EAT), allowed the appeal, on the basis that the Tribunal had erred in law in reaching the conclusion that Forstater’s ‘gender critical’ views were not classed as a philosophical belief, which should attract the protection of the Equality Act.

The EAT held that such philosophical beliefs could only be excluded from that protection where they are akin to advocating “Nazism or totalitarianism”’ or “espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society”. Whereas, beliefs that are, “offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech”, would not be excluded from the protection.   

This judgment is an interesting consideration in the wider context of “free speech” (as explored above) and that although some beliefs may be seen as “offensive and abhorrent to some”, it does not necessarily afford it to protection from the Equality Act.

This is important for HE providers, when considering controversial views that may be discussed amongst colleagues/to colleagues whilst at work, and how these should be dealt with. It should also be mentioned that employers do still remain potentially liable for acts of harassment and discrimination against those with protected characteristics, committed in the course of employment.

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Right to work checks – update

New guidance was published on 1 July 2021 setting out how employers should conduct right to work checks and specific actions to be taken to prevent liability for a civil penalty. An employer's guide to right to work checks (publishing.service.gov.uk)

The key changes are:

1. Changes to the way EEA citizens will prove their right to work in the UK from 1 July 2021

For EEA citizens granted status under the EU Settlement Scheme:

The majority of EEA citizens will prove their right to work using the Home Office online right to work service. Those who have made a successful application to the EUSS will have been provided with an eVisa and can only prove their right to work using Home Office online service ‘prove your right to work to an employer’ available on GOV.UK.

For employees to provide their right to work, they will provide employers with a share code and their date of birth, to allow a check of their Home Office immigration status.

Certain exceptions exist, for certain EEA citizens who do not have leave granted under the EUSS.

2. Changes to the acceptable document list to remove the requirement of EEA passports, national identity cards and specified EEA Regulations documents, which only confirmed the individual’s nationality or that they were exercising EEA Treaty Rights

Changes to the acceptable document list to include;

• Irish passport and passport card
• A document issued by the Crown Dependencies Jersey, Guernsey, or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service
• A frontier worker permit issued under regulation 8 of the Citizens' Rights (Frontier Workers) (EU Exit) Regulations 2020

The temporary adjusted right to work checking process during COVID-19

The COVID-19 adjusted checks end on 31 August 2021.

 From 1 September 2021 employers will revert to carrying out:

• a manual right to work check using original documents; or
• an online right to work check using one of the online checking services.

It remains an offence to knowingly employ a person who is not lawfully in the UK.

You do not need to carry out retrospective checks on employees who had a COVID-19 adjusted check between 30 March 2020 and 31 August 2021 (inclusive). This reflects the length of time the adjusted checks have been in place and supports business during this difficult time.

You will maintain a defence against a civil penalty if the check you have undertaken during this period was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance. However, any individual identified with no lawful immigration status in the UK may be liable to enforcement action.

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Coronavirus (COVID-19) and the higher education sector

The government has recently published guidance - HE operational guidance (publishing.service.gov.uk) setting out the plan from Step 4 of the government’s COVID-19 roadmap – all restrictions being lifted from 19 July 2021.

This means that social distancing and other measures are no longer a requirement, within in person teaching. Higher Education providers are able to shape their courses without restrictions to face-to-face provision. The guidance notes that Higher Education providers need to consider and comply with their legal responsibilities (Health and Safety at Work etc Act 1974 and Equality Act 2010).

Providers need to complete a suitable and sufficient covid risk assessments – these should be continually checked, revised and updated

Following Step 4, providers are encouraged to reduce transmission where possible, but not put in place measures which limit the teaching and learning outcome for students, or significantly limit the wider activities offered by the HE provider. It is not clear at present, to what extent providers should balance reducing transmission with not limiting the learning outcome for students.

The guidance sets out various advice/recommendations providers should follow from Step 4 of the government’s COVID-19 roadmap, including:

• Buildings and facilities can open as normal.
• Testing will continue through the summer break where settings remain open. Students and staff to continue to test twice a week. Where settings are closed, testing will still be widely available. HE providers should strongly encourage all students and staff to participate in the testing programme
• Final decisions about testing on return and ongoing regular asymptomatic testing in the autumn term will take into account public health advice. The position will be confirmed in the coming weeks
• HE providers are encouraged to support NHS Test and Trace and ensure that students, staff and visitors know how the contact tracing process works
• Face coverings will no longer be required for students, staff and visitors in teaching and learning environments, or in communal areas. If there is an outbreak in a Higher Education setting, a director of public health might advise that face coverings should temporarily be worn in communal areas or teaching rooms.
• HE providers should continue to have plans in place to respond in the event that there is an increase in the number of cases, or an outbreak associated with their setting, when they may have to adapt elements of their provision at very short notice
• HE providers should put in place an appropriate cleaning schedule – of areas and equipment, with a focus on frequently touched surfaces. It is important that shared areas within accommodation such as kitchens and bathrooms are cleaned regularly to minimise the risk of transmission, and in particular, after use by those who have tested positive or are displaying COVID-19 symptoms
• When a setting is in operation, it is important to ensure it is well ventilated and a comfortable teaching environment is maintained
• Providers should continue to identify and implement the range of measures required to comply with government guidance for safe workplaces, based on an assessment of the risks and requirements of each environment

For students:

• HE providers should have communications strategies for students and staff, including encouraging students to get vaccinated, participate in the testing programme, ensure the rationale for behaviours and protective measures is understood
• Students over the age of 18 and staff in HE should follow the national guidance for adults who have been identified as a close contact of a positive COVID-19 case
• For those students who do need to self-isolate at university, HE providers should take steps to ensure their students are safe and well looked after during their self-isolation period
• HE providers should encourage students to take up the offer of both doses of the vaccine, as soon as they become eligible and register with a GP practice if they have not already done so
• HE providers should communicate travel guidance to all students, including how to help reduce the spread of COVID-19
• Visa concessions for those on Student (or Tier 4) visas allow for the provision of online learning for students outside the UK until the 6 April 2022
• After following the correct arrivals procedure, students should follow instructions on ongoing asymptomatic testing as set out by their HE provide
• All students should be aware that in England, government guidance is that people should not holiday in red or amber list countries
• Students can form new households and move into their shared student accommodation as normal

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Updated shielding guidance for clinically extremely vulnerable individuals

Updated guidance has been published for those identified as ‘clinically extremely vulnerable’ – 19 July guidance on protecting people who are clinically extremely vulnerable from COVID-19 - GOV.UK (www.gov.uk)

This comes into effect from 19 July 2021, when England moves into ‘step 4’ of the government’s roadmap out of lockdown.

As step 4 calls for social distancing measures to no longer apply in the workplace, there will no longer be a general instruction to work from home. This may increase the risk for clinically extremely vulnerable workers, particularly in the HE sector.

There is a delicate balance to be struck – as from an employment perspective, employers have a legal duty to protect employees and others from risks to their health and safety. Therefore for HE workers who may have exposure to lots of students/colleagues, measures will need to be considered/implemented such as regular COVID-19 testing.

The guidance does not refer to clinically extremely vulnerable workers having any additional rights to work from home beyond 19 July 2019, so careful consideration will need to be given to ensuring the safety of the workers, whilst considering the needs of the particular HE institution and the individual’s particular role.

Consideration should also be given to students who are clinically extremely vulnerable.

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