Welcome to our Spring education bulletin
As schools return from lockdown and prepare for another summer of exam uncertainty, we highlight updates and some of the legal issues of working within a pandemic.
We are continuing to hold webinars, in place of our education briefings, on topics relevant to schools. To assist, recorded webinars are available for you and your colleagues, governors, trustees, and academy members to access at times that best suit you.
As always, we really welcome feedback and suggestions for further topics that may be of interest to you, so please get in touch.
Employer should have refreshed equality and diversity training as a reasonable step to prevent racial harassment
EAT: assessment of whether employer took all reasonable steps to prevent discrimination should include deciding if a step is likely to be effective.
Under the Equality Act 2010, employers can be vicariously liable for an employee's discrimination, harassment or victimisation of another person. Employers can defend such claims on the basis that they took "all reasonable steps" to prevent the unlawful act from happening. This is sometimes known as "the statutory defence".
What are reasonable steps to prevent discrimination in the workplace?
Reasonable steps might include putting in place and regularly reviewing equality and diversity and anti-bullying and harassment policies; providing regular training on these issues to all staff; ensuring that disciplinary policies and workplace rules make clear that discriminatory acts will be a disciplinary matter; ensuring that managers are aware of how policies and procedures should work in practice; and taking rigorous steps to deal with breaches.
It is of course advisable to deal rigorously with any allegations of harassment or discrimination once they are received, investigating the matter and following a grievance and/or disciplinary procedure as appropriate. However, "reasonable steps" must be undertaken before the discriminatory act; retrospective action will not assist an employer in using the statutory defence.
There are very few reported cases which consider the "reasonable steps" defence. A recent EAT case has shed light on how tribunals should approach the assessment of whether an employer took all reasonable steps and can therefore avoid liability for an employee's unlawful actions.
Case details: Allay (UK) Ltd v Gehlen
Mr Gehlen, an employee of Allay, was dismissed following performance concerns shortly before he reached one year's service. He brought claims including harassment related to race to an employment tribunal.
The tribunal accepted Mr Gehlen's evidence that a colleague had regularly harassed him in relation to his Indian origin, making comments about his skin colour, suggesting that he should go and work in a corner shop, and asking him why he was in the country. The tribunal also found that Mr Gehlen's colleagues had heard these comments and taken no action. When Mr Gehlen reported the harassment to a manager, the manager told the claimant to make a report to HR, but took no action to report or deal with the issue himself.
Allay argued that it had taken all reasonable steps to prevent the harassment from taking place and that it was not therefore liable for the harassment. It pointed to its equal opportunity policy, anti-bullying and harassment procedure, and the fact that the harasser had undertaken equality training 20 months before Mr Gehlen began to work for Allay.
The tribunal did not accept that Allay had taken all reasonable steps. It found that the harasser and colleagues who overheard his comments had all taken part in the equality training, which included reference to race discrimination. The tribunal found that the training was "stale" and needed to be refreshed. This finding was not based on the time which had passed since the training, but was on the basis that racial harassment had subsequently taken place and that a number of employees had failed to follow the guidance given in the training when they overheard the comments being made.
Mr Gehlen was awarded compensation of just over £5,000. This was on the basis of injury to feelings only and included a reduction of 25% because the claimant had not used the employer's grievance procedure to raise his concerns.
On appeal, the EAT agreed with the tribunal that the training was no longer effective to prevent harassment, and that there were further reasonable steps that the employer should have taken.
The EAT clarified that tribunals should first consider any steps already taken by the employer and whether these were reasonable, and then go on to consider whether there were any other reasonable steps the employer should have taken. When assessing whether a step is reasonable, the tribunal should consider a range of factors, including cost, practicality and whether a particular step is likely to be effective to prevent discrimination. However, there is no need for the step to be more likely than not to prevent the discrimination for it to be considered reasonable. Employers who argue that a step was not reasonable because it was very unlikely to have prevented the discrimination must establish to the tribunal that this was the case, bringing evidence on this point. In this case, the employer had asked the harasser to undergo equality training following the claimant notifying his potential claim to Acas, suggesting that it considered that such training would be effective.
Should employers rely on the statutory defence?
In order to rely on the reasonable steps or statutory defence, it will be helpful for employers to be able to evidence that they have implemented clear policies and put in place good quality training which specifically reference discrimination, harassment and victimisation and protected characteristics under the Equality Act 2010.
As this case highlights, it will not be sufficient for an employer to point to the simple fact that a policy has been written and training undertaken. The effectiveness, relevance, accessibility, implementation, review and updating of policies and training will all be factors in convincing a tribunal that all reasonable steps were taken to prevent discrimination.
Evidence that colleagues or managers have taken proactive steps in relation to a complaint of discrimination would help to evidence that policies and training are effective and that all reasonable steps have been taken.
It is important to note that it is not always advisable for an employer to run the statutory defence. This is because it in effect cuts adrift the employee who is alleged to have done the discriminatory act. This is of course likely to impact on whether the alleged perpetrator will be able to provide useful evidence as a witness to support the employer's case. It is more common for an employer to defend a claim on the basis that the alleged unlawful act did not take place, or that the treatment of the claimant was for a lawful reason. In such a case, the alleged perpetrator will often helpfully provide first-hand evidence on the reasons for the treatment in question in support of the employer's defence.
Claims under the Equality Act 2010 can also be brought against individual employees and claimants may bring claims against colleagues and their employer as joint respondents. Individual respondents to a claim may need their own independent legal advice where the interests of the employer and the individual could be in conflict and particularly where the employer is arguing that it did all it reasonably could to prevent an employee from doing the alleged act.
Because of the difficulty of navigating these issues, employers should take legal advice when dealing with allegations of discrimination and before deciding to defend a claim on the basis that they have taken all reasonable steps to prevent discrimination from occurring.
Could schools insist that staff take up the offer of a Covid vaccine?
The legal considerations for schools and academy trusts.
Teachers and teaching unions are calling for staff working in schools to be offered the Covid vaccine at the earliest opportunity. As we approach full school re-opening on 8 March, such calls are likely to intensify and it is possible that school staff will be offered the vaccine in the short term.
In the health and care sector, employers have begun to consider bringing in policies of mandatory vaccination for staff working in higher risk roles and with vulnerable service users. School employers may also begin to consider whether staff can be expected to take up the offer of a vaccine and how to respond if they refuse.
The question of whether schools can insist on staff having the vaccine when offered is one to which there is not a simple answer. Schools and academy trusts will need to tread extremely carefully when considering a policy of compulsory vaccination. They will need to enter into meaningful consultation with staff and unions and be prepared to make adjustments to any such policy to reduce the risk of grievances, disputes and claims, including claims supported by unions.
Schools and academy trusts who are considering putting such a policy in place should also consider the wider reputational risks of parent, social media and press interest in such a policy, particularly where there is significant opposition to it from employees and their representatives.
Is it reasonable to mandate the vaccine for school staff?
Employers have an overall duty to act reasonably towards their employees, taking into consideration the particular circumstances which apply to the employee and the employer. Assuming there will come a point where all school staff can access the vaccination, the question of whether compulsory vaccination is a reasonable requirement is one which will need consideration in the round. A requirement to take a vaccine and disciplinary action for any refusal could be unreasonable in some circumstances. For example, where an employee has reasonable concerns about taking the vaccine.
Where employers act unreasonably, there is a risk that employees could resign and bring constructive dismissal claims based on a breach of "trust and confidence". This claim is based on the implied term in all employment contracts that employers and employees must not, without reasonable and proper cause, act in a way which is likely to damage or destroy the relationship of mutual trust and confidence between them.
The question then will be whether the employer has reasonable and proper cause to require the employee to be vaccinated or to take steps to discipline them if they do not. This would include:
- Considering the role the particular member of staff is carrying out – are they working in a higher risk role such as carrying out personal care or working with children with special needs?
- The risks to pupils, parents and other staff which the employer is concerned to mitigate – does the school work with groups or individuals who are particularly vulnerable to the virus and is the infection rate in the local area of particular concern?
- The evidence on which the employer has decided to make the vaccine a requirement – what is the most recent Government or Public Health England advice on the impact of vaccination on transmission, serious illness and death?
- Is there another way of mitigating the identified risks which would have less impact on the member of staff – are the current measures in place in school to control spread sufficient to reduce risk to an acceptable level?
Disciplinary procedures for refusing to take the vaccine
Where a school employee refuses the offer of a vaccine, could an employer start a disciplinary process and even dismiss fairly for this refusal?
One key question here is whether the school has properly put in place a clear policy or contractual obligation on the employee to take the vaccine when offered. As this is likely to be a change to the employment contract, it will be important to reach agreement to the change, following any relevant procedures for collective consultation and agreement with trade unions before finalising the policy. Consultation on such a policy with staff or their representatives will also improve the chances that the policy is widely accepted and address key staff concerns, including consideration for special circumstances and exceptions to the rule.
Where individual employees refuse to comply with any such rule, schools and academy trusts should begin by discussing with those individuals their reasons for not taking the vaccine. Only after considering these particular reasons and circumstances should any formal step be taken, such as issuing a management instruction or following a disciplinary procedure.
Suspending, disciplining or dismissing an employee for a refusal to have the vaccine is likely to lead to grievances, and schools and academy trusts could well face employment tribunal claims for unfair dismissal, constructive dismissal and discrimination after taking such action.
It is important to note that some of the reasons why employees do not wish to take the vaccine will be linked to protected characteristics under the Equality Act 2010. The risk of discrimination claims arising from a blanket policy on mandatory vaccination is therefore considerable.
Employees with certain health conditions may not be able to, or may not wish to, take the vaccine and may be able to argue that the policy or action arising from it discriminates against them because of a disability or something connected to a disability.
Advice for pregnant women from the Joint Committee on Vaccination and Immunisation has recently changed to suggest that they can have the vaccine if they are at high risk from the virus. However, those who are pregnant are not routinely being offered the vaccine and may also be able to show that they are indirectly discriminated against by imposing such a policy.
The vaccination may raise concerns for employees with particular religious beliefs or philosophical beliefs, for example because of concerns about products used in the vaccine-making process or because of a belief-based objection to the practice of vaccination itself. In reality, it will be difficult for employers to be able to assess whether an employee's beliefs would be found by a tribunal to be protected under the Equality Act 2010. Case law indicates that a philosophical belief will be protected if:
- it is genuinely held;
- it is not just an opinion or view based on the present state of information;
- it relates to a 'weighty and substantial' aspect of human life and behaviour;
- it is sufficiently cogent, serious, coherent and important; and
- it is worthy of respect in a democratic society and not incompatible with human dignity or conflict with the fundamental rights of others.
More extreme "anti-vaxxer" views may not be protected if they lack coherence and are found not to be worthy of respect in a democratic society. However, proceeding on the basis that a particular belief will not be protected could be risky and lead to significant litigation costs and reputational risks.
Indirect discrimination claims can be defended if the policy in question can be shown to be a proportionate means of achieving a legitimate aim. To succeed in such a defence, employers would need very sound business reasons for mandating the vaccine, supported by documentary evidence of those reasons. Where the employee has good reasons for refusal and the discriminatory impact on the employee is significant, it is unlikely that an employer would be able to justify mandatory vaccination in all cases.
The health and safety duties of school employers
All employers have a statutory duty to protect the health, safety and welfare at work of their employees as far as is reasonably practicable. This includes duties to assess the risks impacting on staff in their work, to consult on health and safety issues with staff health and safety representatives (where these are in place), to create a safe system of work, to ensure that system is properly implemented, and to have a regular programme of review.
Encouraging school staff to accept a vaccination when available and providing them with accessible information about the vaccine will certainly be part of an employer's reasonable steps to manage and mitigate the risks of Covid-19 at school. However, particularly in the short and medium term, encouraging staff vaccination will be only one of a suite of control measures. And, as set out above, there will be a number of categories of school employees who may have good reason not to take up the offer of vaccination.
Because of the significant reputational and legal risks here, we highly recommend that schools and academy trusts take specific legal advice when considering a policy or risk assessment including compulsory workforce vaccination for some or all staff.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.