UCU publishes advice on legal liability of universities over face-to-face teaching during COVID-19

Ten branches of the UCU have commissioned the advice from Leigh Day solicitors on the legal liability of universities in respect of COVID-19 illness and deaths.
 
The advice makes clear that university senior management teams could, if their actions or omissions caused a Covid-19 infection of illness, potentially be liable to prosecution and civil action. 
 
The legal advice sets out the duties and responsibilities of management to protect staff and students from Covid infection and asserts that any management instruction to conduct face to face teaching could be deemed unreasonable by the courts. 
 
Leigh Day Partner, Harminder Bains, who was instructed by the UCU branches said:
 
“The advice sets out the possible remedies available in law, should anyone feel they are being placed at risk.

“In certain circumstances it might be “cogently argued that face to face teaching poses an unacceptable risk to staff such that a request by an HE provider for face to face teaching can be lawfully refused and/or if it is insisted on, then the HE provider may be liable for consequences of the transmission of Covid-19 in the workplace in circumstances where a member of staff
becomes infected.”
 
The legal liabilities of universities:

1. Injunction: The Covid protection failures of the university, combined with their demands for staff to engage in face to face teaching, may amount to a breach of the express or implied terms of the contractual relationship.  In specific circumstances, an injunction preventing the employer from disciplining an employee for refusing to engage in face to face teaching may be possible.
2. Civil claims for negligence may be possible where harm has been shown to have resulted from a failure to make suitable and sufficient risk assessments and a failure to take measures to make work as safe as is reasonably practicable in accordance with the requirements of HSW legislation and the national Covid guidelines. Such measures include requiring staff to work from home where this is possible. 
3. There is the potential for a criminal prosecution to be brought by the HSE if there is evidence of a breach of the Health and Safety at Work Act 1974 and /or relevant HSW Regulations.
4. A successful prosecution for corporate manslaughter (or the equivalent offence corporate homicide in Scotland) may be possible if there is evidence of an extremely high level of negligence – a flagrant disregard for safety - in the case of a Covid 19 death.  The offence carries a penalty range of £3m to £20 million for organisations with an annual turnover exceeding £50m.
5. Similarly, a prosecution might successfully be brought for the offence of gross negligence manslaughter following particularly egregious examples of reckless conduct by senior management.

In relation to 4 and 5, a gross breach of a relevant duty of care in the HE sector could
Possibly arise in circumstances where the HE provider had signally (i.e. in gross dereliction of duty) failed to carry out any suitable or sufficient risk assessment in relation to a particular aspect of face-to-face teaching and yet still insisted on/permitted it to go ahead.
 
Other key messages:
 
Risk assessments and protective facilities should not be generic but relate to each subject taught and the various locations in and around the university. 
 
‘It is difficult to accept that an HE provider could assert vaguely they were “just following national guidance” when that national guidance emphasizes the importance of localised risk assessment which specifically looks at the subject being taught’. 
 
The risk of transmission is unlikely to be acceptable if a person of reasonable fortitude informed of the risks (and the mitigation measures available) would refuse to undergo the risk in question.
 
The advice was commissioned to support UCU campaigning, negotiations and industrial disputes over staff and student safety.  The advice gives strength to UCU members who are being required to teach face to face or work on campus against their will.
 
Jess Meacham, University of Sheffield UCU Branch said:
 
"Since September, UCU branches have been overwhelmed with members reporting health and safety concerns, ranging from inadequate risk assessments to poorly-ventilated classrooms to concerns over student safety. In the fight back against unsafe working conditions we're exploring every option in making sure University managements meet their legal responsibility to ensure both staff and students can work as safely as possible."
 
Anthony O’Hanlon, President of the University of Liverpool UCU Branch said:
 
“The marketised model of higher education has placed staff and students at risk.  This opinion shows that employers who endanger workers recklessly can be held liable, and, with the support of their union, employees can refuse to do dangerous work.”