University campuses might be starting to look normal again, but the legal landscape is ever-changing in response to global events. Here, we pick three hot topics in higher education law and ask trusted HE lawyers for their words of wisdom.
Should staff be compelled to have the Covid-19 vaccine?
by Nadjia Zychowicz, Kingsley Napley LLP
With the prospect of universities being allowed to reopen properly again very soon, the vaccine issue remains a grey area.
In the US, Brown University and other colleges recently announced that they will require students to be vaccinated before returning to campus. So far we have not seen UK universities impose similar requirements. However, the question of whether universities as employers can require teaching and administrative staff to have the Covid-19 vaccine is one that falls squarely in the debate that employers up and down the country have been having with lawyers and the government alike.
Pimlico Plumbers were one of the first UK employers to publicise a “no jab-no job” policy back in January, and since then we have seen care-home groups making the vaccine mandatory for staff looking after vulnerable patients. Yet, for most employers, the situation is less clearcut.
There is currently no legal requirement to be vaccinated and the government has so far shied away from compelling people to be. Michael Gove’s review of the potential use of vaccine passports, expected in June, could alter the position. However, because of the potential for discrimination as well as infringement of people’s human rights, compulsory vaccination is very unlikely.
Employers can encourage staff to get vaccinated (as they may do with a winter flu jab, for example), provide access to medical information, allow paid time off to get the vaccine and provide sick pay for those suffering with side-effects. However, insisting that employees are vaccinated could risk exposure to discrimination claims from those whose choice not to be vaccinated is attributable to a protected characteristic (such as a medical condition amounting to a disability, or a religion or belief) or unfair dismissal claims if employers discipline, dismiss or change employee’s contractual terms.
Requiring staff to be vaccinated would engage their rights under the Human Rights Act 1998 (HRA) and as public sector employers, most universities must act in a way that is compatible with the HRA, otherwise they could be subject to judicial review.
Employers are best advised to follow the Health and Safety Executive’s (HSE) guidance on creating a safe environment by implementing social distancing, frequent cleaning, adequate ventilation and good hand hygiene. The government is also working with HE providers to offer twice-weekly asymptomatic testing to all students and staff.
“Insisting that employees are vaccinated could risk exposure to discrimination claims from those whose choice not to be vaccinated is attributable to a protected characteristic” – Nadjia Zychowicz
Employers should carry out risk assessments, implement the full suite of measures, consult with employees (and union representatives), monitor effectiveness, and keep risk assessments under review.
Whether employers can refuse unvaccinated staff entry to offices will depend on whether the requirement is necessary and reasonable. Where social distancing cannot be maintained and workspaces cannot be ventilated, it may be reasonable to require employees to wear masks and either be vaccinated or complete regular tests and temperature checks. However, blanket requirements for vaccination, and excluding staff from the workplace, are unlikely to be necessary where alternative solutions are available. The key is to ensure that alternatives are considered, such as extending remote working or introducing screens or PPE, before taking action against employees.
This is a sensitive area as information about health is considered ‘special category’ personal data, which is tightly regulated by data protection law.
The Information Commissioner’s Office has helpful guidance on this topic, and advises employers that before collecting vaccination data, they should be clear about what they are trying to achieve and how recording staff vaccination status will help. Use of this data must be fair and necessary, storage must be secure and retention kept under review.
As some may deem the collection of such data an invasion of their privacy (a right protected under the HRA), employers should communicate openly with staff, explain their reasons for wanting to collect the data and how it will be used.
The requests for such data should also be optional.
As compulsory vaccination carries real risk for employers (certainly until the outcome of Michael Gove’s review is known), universities must rely on their staff and students to do the right thing. Implementing effective health and safety measures alongside open consultation with staff and addressing individuals’ concerns respectfully, remains the best route forward.
How can universities manage their money-laundering risk?
by Con Alexander and Gabriel Cohen, VWV
As highlighted by an article in The Times in February 2021, many universities face the risk that they are facilitating money laundering when receiving cash payments for student fees.
It is common practice for universities to include provisions in student terms and conditions on non-acceptance of cash payment of fees. However, even where a university refuses to accept cash payments, there is a practical risk that some banks are unable to (and/or do not in practice) stop students (or third parties) from depositing cash direct into the university’s bank account. A solution to this risk would appear to require a change to the way in which the banking system works and is likely to require action by the banks, their regulators and government.
Pending a change of that kind, what steps should a university take in respect of fee payments made in cash into its bank account?
When a university receives a cash payment for fees, it will need to decide whether it suspects or has grounds to suspect that the cash paid constitutes the proceeds of crime. A system should be in place to ensure that the university’s money-laundering reporting officer is alerted as soon as possible. Following carefully handled communication with the student, and in the absence of a satisfactory explanation from them as regards the source and circumstances of the payment, it may be that the university forms the view that there are grounds for suspicion that the cash payment constitutes the proceeds of crime, probably on the basis that it is connected with money laundering.
There are a number of criminal offences that relate to dealing with the proceeds of crime that universities and their staff could commit (even inadvertently), whether by simply receiving cash payments (to the extent that the university becomes concerned in an arrangement to facilitate the retention of the proceeds of crime), by returning the sum to the student in cash or otherwise (as it is potentially transferring or converting the proceeds of crime) or by retaining the funds.
An additional set of potential offences may be relevant if the university suspects that the cash may be linked to terrorism – this situation would require urgent attention and advice based on the specific case.
It is a defence to certain of these offences to have made an ‘authorised disclosure’ – a ‘suspicious activity report’ – to the National Crime Agency (NCA) in relation to action the university proposes to take and to have obtained the appropriate consent from the NCA to proceed. And, in fact, disclosure to the NCA is mandatory for all universities that are in the ‘regulated sector’ for the purposes of anti-money-laundering legislation.
If a university has information about specific criminal activity associated with its disclosure to the NCA, such information should in most instances also be reported to the local police force or, in the case of fraud, Action Fraud.
It will be important that universities remain very aware of the need to avoid committing the offence of ‘tipping-off’ in their communications with students, which could inadvertently occur if the university discloses either that a disclosure has been made (whether internally or externally to the NCA, HMRC or the police) or that an investigation into money laundering is being contemplated or carried out.
Of course, all of this will often take place in the context of numerous (and potentially competing) aims:
● to comply with the university’s legal obligations and avoid committing criminal offences;
● to protect the university’s reputation;
● to accept payment where it is reasonable, responsible and lawful to do so; and
● to treat students fairly at all times and to meet the university’s obligations to them.
Given the danger of being used by criminals to launder money and the risk that they or their staff may inadvertently commit criminal offences, compounded by the complexity of the law in this area, universities should take the problem of receiving cash payment of fees extremely seriously; they need to put in place robust and practically orientated systems, controls and procedures to deal with risks relating to money laundering and specifically to create an action-plan for responding to the receipt of fees in cash. In many cases, advice on the university’s obligations and its options may also be necessary.
What should happen if one student alleges sexual misconduct by another?
by Stephen Hocking, DAC Beachcroft
The website ‘Everyone’s Invited’ (which allows individuals to share their experiences of being subject to sexual misconduct) has sparked a debate about so called ‘rape culture’ in educational institutions. Universities will not be immune, sitting as they do on two front lines; one of newly independent young people finding their way in the world, and the other society’s evolving standards of what is and is not acceptable conduct.
If one student alleges sexual misconduct by another, what can and should an institution do? It has to balance the rights and needs of the student making the allegation against the student who is accused. Difficult though that is there are some useful legal pointers that can be given.
First, what are the broad legal obligations on an institution? One is that it must make its services and premises available to students without discrimination. Sexual misconduct can almost always be looked at through the lens of equality law, because it will always be linked to a complainant’s sex or gender identity, or both. Expecting a complainant to continue to share spaces or services with an alleged attacker needs to be analysed from this perspective. This is a helpful starting point because first, it focuses on the future experience of the accuser and not on punishing the accused (which is a matter for the criminal justice system) and second, it may cut through what are otherwise distracting but possibly not very relevant details (such as whether the conduct took place on university premises or not).
Second, the institution has contracted to provide education to both the accuser and the accused, and the accused’s right to receive education can only be interfered with in accordance with that contract.
“While an accuser should be supported to report a matter to the police if they wish, whether they do or not is not something that an institution should place weight on in deciding on its own response” – Stephen Hocking
One point not to overlook is whether any measures can be taken immediately that do not amount to an interference with education at all, such as an adjustment to seminar groups so that accuser and accused do not need to be in the same room, or discreet relocation of one of the parties to new accommodation. The contract will no doubt reference expected behaviour standards which will (we would hope) cover sexual misconduct, and ideally will also refer to the need to ensure all university premises and services are safe, non-discriminatory and accessible for all. If a breach of those standards can be established, then the institution can legally take action to safeguard the accuser even when that interferes with or even terminates the accused’s education.
This is where things can easily go wrong. The answer is to focus on what the institution is trying to achieve: ensuring the accuser can continue to access education safely and without discrimination without unlawfully interfering with the accused’s contractual rights. In this way many potentially complicated but unproductive questions (in particular, whether the allegations or any findings made on them would or should also amount to a crime) can be sidestepped. Conduct that may not be criminal could nevertheless raise serious issues about safe access to education, and (perhaps less often) conduct that might be criminal could be found nevertheless not to call for university action. Remember: the purpose is to safeguard the accuser (and others), if allegations are substantiated, not per se to punish the accused.
For similar reasons, while an accuser should be supported to report a matter to the police if they wish, whether they do or not is not something that an institution should place weight on in deciding on its own response.
The institution will have disciplinary and investigative procedures and, of course, those must be fair, and followed carefully. Specific training for these types of cases is advisable. Care must be taken to separate out pastoral support for the accuser from the more inquisitorial and even-handed approach needed in an investigation, not only because a pastoral approach may taint the fairness of a disciplinary procedure, but also because the accuser must have a safe space to share information for exclusively pastoral purposes without the institution potentially being required to reveal that information to the accused in the interests of a fair disciplinary process. Good information governance is vital.
What if the accused refuses to engage with a disciplinary process (perhaps during a police investigation)? So be it. The institution cannot lawfully delay doing what may be necessary to ensure its services are safe (and reasonably perceived as safe) while a criminal investigation takes place. The accused loses their chance to put their side of the story, but of course their silence must not be taken as any proof that the allegations are true. All the remaining evidence must be weighed and the institution will come to a view in the usual way. It would, though, be very wise to make sure that disciplinary and investigation procedures provide for this scenario specifically.
Needless to say, the best outcome for all concerned is for such situations never to occur, and there is much that institutions can do to try to reduce the risk. If they do arise, though, a clear focus on ensuring an institution is a safe and non-discriminatory space should help cut through some of the difficulties that present themselves.
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