As places where an often internationally mobile population of people study, work and live, higher education providers will be thinking about the impact of COVID-19 on their institutions. While legal considerations may understandably not be at the top of any institution's contingency planning list, there are some useful general points to bear in mind.
First, alterations to the provider's usual services to students that are a necessary response to COVID-19 should be covered by the force majeure clause that any well drafted institution-student contract will contain. Interruptions to services caused by force majeure are not a breach of contract. However deciding what is "necessary" to respond to COVID-19 may not be easy. So for example following official Public Health England guidance is highly likely to be necessary and very unlikely to be a breach. Common sense measures that go beyond official guidance may be more vulnerable and the institution will have to balance the legal risk of a step being found unnecessary and so a breach against the need to protect staff and students. Evidence of that balancing exercise may well be helpful if any later complaints are made. Where possible alternative ways to provide the same service should be considered (for example, if physical lectures are cancelled, can the same material be webcast? Rather than cancel an assessment, can it take place in more but smaller venues?)
OfS guidance should be considered. The OfS has not published guidance of its own on COVID-19 but its earlier guidance on disruption caused by industrial action will be useful and can be found here.
Providers should consider the activities of third parties on their premises or with their staff. Providers are not responsible for and cannot control the actions of, say, student societies or sports clubs, but they can decide whether to make provider premises or facilities available for those activities. Where, say, a provider has itself decided to take steps to limit travel or unnecessary large gatherings, it may want to review whether it should be providing facilities to societies or clubs that will lead to travel or large numbers or people coming together. Where, say, a student union owns its own facilities, a provider might at least want to make sure that union officials are considering up to date COVID-19 guidance.
Although providers are not responsible for providing advice to staff or students, (and there would be legal and medical dangers in providing inexpert advice) it would be a wise precaution to ensure that authoritative advice eg from the NHS or PHE is clearly signposted to staff and students, and that the provider's own position, precautions and expectations are equally clearly communicated. (For example a provider may wish to be told that a student is self-quarantining in provider owned accommodation). Any possible academic dispensations for illness and how they can be claimed will need to be clearly and regularly communicated to avoid a situation arising where claims are made outside the providers processes, which are likely to lead to disputes.
Finally, in view of reports of people of Chinese origin being subject to racial abuse as a result of the COVID-19 outbreak, it is important to discourage unhelpful and possibly illegal reactions, particularly for providers with a significant number of students from China or other countries that are currently more affected by COVID-19. Presently likely exposure to the virus is correlated with having been in certain parts of the world, but, obviously, it is possible exposure and not ethnicity or nationality that is of interest. Providers may need to be alive to the possibility of irrational concerns or tensions arising, and the need proactively to take steps to ensure good relations at their institution.
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.