Welcome to our Spring Edition of Higher Education Employment Eye. With national lockdown restrictions continuing to ease, this bulletin will cover off the main changes/legal updates that the Higher Education sector should be aware of, as we begin to emerge from the pandemic.
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Furlough extended to September 2021
Further to our last update in January 2021 which noted that the Coronavirus Job Retention Scheme (CJRS) had been extended to April 2021, it has since been extended to September 2021.
This may be of interest to Higher Education employers who have utilised the furlough scheme, especially with their non-academic employees. The scheme will continue to pay up to 80% of employees’ usual pay, capped at £2,500 per month.
The government support will however, begin to taper down – from July 2021, employers will contribute 10%, with the government contributing 70%.
In August and September 2021, employers will contribute 20% and the government contributing 60%. Employers will continue to pay all employees National Insurance and pension contributions.
HM Treasury published a seventh Treasury Direction on the CJRS which reflects the changes mentioned above.
Is a dismissal over an employee’s concerns about contracting COVID-19 automatically unfair?
In Rodgers v Leeds Laser Cutting Ltd, an Employment Tribunal considered Mr Rodger’s COVID-19 related claim under sections 100(1)(d) and (e) of the Employments Rights Act (ERA 1996) which provide employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is ‘serious and imminent danger.’
Facts of the case
In this case, Mr Rodgers, a laser operator informed his manager that he would be staying away from his workplace “until the lockdown has eased” as he was worried about infecting his vulnerable children (a young baby and child with sickle-cell anaemia). He did not reference any issue specifically within the workplace.
A month later, he was dismissed. As Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal, he instead alleged that he had been automatically unfairly dismissed – for exercising his rights under sections 100(1)(d) and (e) of the ERA 1996.
The Tribunal considered a number of factors, to establish whether there was a reasonable belief in ‘serious and imminent workplace danger’ and on the facts, such a belief could not be established. Interestingly, the Tribunal rejected Mr Rodgers’ argument that COVID-19 caused circumstances of ‘serious and imminent workplace danger’ regardless of the employer’s safety precautions.
Actions for employers
Although this decision turned on the specific facts of this case, it highlights how important implementing COVID-19 secure measures are, especially in the higher education sector where staff may feel more at risk, due to being around numerous students etc/in environments where transmission may be perceived as a higher risk.
Equality Act 2010 – definition of disability must consider ‘substantial’ adverse effect
In Elliot v Dorset County Council, the Employment Tribunal (EAT) considered whether the ET had adopted the correct approach in determining whether Mr Elliot’s impairment had a ‘substantial’ adverse effect on his ability to carry out normal day-to-day activities.
This case concerned Mr Elliot, an IT Systems Manager at Dorset County Council, who was subject to disciplinary proceedings after his new line manager alleged that he had been recording more hours than he worked. During the disciplinary proceedings, he was diagnosed with Autism Spectrum Disorder and Asperger’s Syndrome. He was later made redundant due to a restructuring exercise.
Mr Elliot’s claim
Mr Elliot later made a claim for disability discrimination, however the Employment Judge found that Mr Elliot was not disabled as his impairment did not have a ‘substantial’ adverse impact on his ability to carry out day-to-day activities.
The EAT found that the Tribunal had failed to adopt the correct approach in determining whether Mr Elliot’s impairment had a ‘substantial’ adverse effect on his ability to carry out normal day-to-day activities. The EAT considered that if the adverse effect has a more than minor or trivial effect on the ability of a person to carry out day to day activities, the definition was met.
It is important that the statutory definition prevails over any other guidance such as the Equality Act 2010: Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability and the Equality Act 2010 Code of Practice.
In terms of the individual’s day-to-day activities, the EAT found that the focus should be placed on what a disabled person cannot do rather than what they can do.
Actions for employers
This case is useful in providing employers with guidance in this complex area. Higher education employers should be aware of the Equality Act 2010 definition of disability and for any staff who may fall within the definition, ensure that they are afforded the support they require and any reasonable adjustments are made, to mitigate the risks of any potential discrimination claims.
Coronavirus (COVID-19) and the higher education sector
The Government has updated its guidance - Students returning to, and starting, higher education in Spring Term 2021 (publishing.service.gov.uk) to reflect the UK roadmap and in particular ‘Step 3’, students returning to campus for the Spring term (no earlier than 17 May), which provides that in-person teaching and learning can resume for all remaining students.
Higher Education providers have been advised to review their measurers to ensure the return to campus is COVID-secure. Factors to be considered by providers preparing to welcome students back include:
Accommodation – shared areas such as kitchens and bathrooms should be cleaned regularly and ensure instructions are provided to residents in university-managed accommodation.
The College of University Business Officers and the Universities Safety and Health association have jointly issued a checklist for students living in shared accommodation to help minimise the risk of coronavirus transmission. CUBO and USHA issue advice to reduce Covid transmission in shared student accommodation - College and University Business Officers
Face coverings – Where social distancing may be difficult around campus (e.g. workshops, laboratories, offices, libraries etc), it is recommended that Higher Education providers adopt the use of face coverings as part of their wider COVID-secure measures.
A process should be clearly set out for when face coverings are worn on campus premises and how they should be removed – this should be communicated clearly to students, staff and visitors.
Testing asymptomatic students – Higher Education providers are being encouraged to offer twice weekly asymptomatic testing to all students residing in their term-time accommodation, or accessing university facilities, and to all staff.
It is recommended that students test before returning to university, either through their local community testing programme or by ordering a test online. This should be communicated to students, so they are aware of what is expected.
On returning to university, students should take three tests at an on-site testing facility and twice a week thereafter. Staff are also recommended to test twice a week.
There should be measures in place for students and staff to participate in the testing programme, and the results of which to be reported (whilst considering the data protection implications of on-site testing/recording).
For students who test positive and need to self-isolate, Higher Education providers should ensure students are supported. Some students may be eligible for a one-off payment of £500 through the NHS Test and Trace Support Payment scheme, which should be communicated to them if they are required to self-isolate.
Clinically extremely vulnerable (CEV) students and staff
CEV staff who were previously shielding are now able to attend the workplace, where they are unable to work from home and CEV students should attend their Higher Education provider, when advised by their provider.
It should be noted too that from 1 April 2021, people in that category will no longer eligible for Statutory Sick Pay (SSP) on the basis of being advised to shield.
Trade Union Congress (TUC) 2020/21 survey findings
The TUC’s 2020/21 survey of more than 2,100 workplace safety representatives was published on 29 March 2021 and revealed that many employers are failing to follow Covid-secure rules and keep workers safe which was putting workers at risk of infection and avoidable illness.
The main findings were that:
- Risk assessments: more than a quarter of safety representatives were not aware of a formal risk assessment being carried out in the last two years and of those who said their employer had carried out a risk assessment, 23% said they felt the risk assessments were inadequate.
- Workplace outbreaks: 83% of those surveyed said employees had tested positive for COVID-19 in their workplace and 57% said they had seen a “significant number of cases”
- A quarter believed that social distancing rules and physical barriers between colleagues in the workplace were not being implemented at all times and generally, social distancing had not always been complied with
- 35% said that adequate PPE was not always provided
- As a result, 65% said they are dealing with an increased number of mental health concerns since the pandemic began and 76% cited stress as a workplace hazard
In preparation for many staff to return to campus after 17 May 2021, higher education employers should use this time to ensure that their COVID-19 measures are watertight and robust health and safety measures are in place.
Employers should regularly check and amend their risk assessments and policies as appropriate. The government has encouraged providers to share best practice in order to achieve a consistent approach to reopening that puts the health and safety of students and staff at its heart. It is increasingly important to continue open communication across all institutions to help ensure Higher Education employers are complying with their obligations under the Health and Safety at Work Act 1974.
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