Education newsletter Summer term 2020 edition

22 April 2020

Welcome to the summer edition of our newsletter for schools.

We are beginning a summer Term remotely, until further notice.

On Sunday afternoon we heard from the Education Secretary, Gavin Williamson who confirmed that "people are anxious to know when the government are going to relax restrictions and when schools are likely to be fully back and open again… but I can't give you a date…".

'One World: Together At Home' was the title of the special broadcast curated by Lady Gaga - a fantastic initiative to support the healthcare workers on the frontline of the COVID-19 crisis and the World Health Organization.

Our team at Wilsons has produced the content of this newsletter to assist schools during these unprecedented times. Our update on force majeure is an essential read for all independent schools at the earliest opportunity this Term. The Employment team have summarised the current terms of the Coronavirus Job Retention Scheme (CJRS) and consider the position at the end of the scheme, as well as covering the April 2020 Employment law changes generally. We also look at handling school processes effectively, including during the time of school closures and also cover the topics of online contracts, school fees recovery and give an overview of the intended summer 2020 exam grading system.

Thank you for everything that schools across the country continue to do.

Stay safe and please do get in touch if there is anything that we can assist with.

The Education Team at Wilsons

Handling school panel processes with care

Independent schools are expected to handle a number of internal processes by way of a panel review, for example, admission appeals, parental complaints and exclusion appeals.

On paper, these panel processes look quite straightforward. However, as many readers will know, things are rarely as easy as forming a panel and writing to the parents with a decision. This article highlights some of the tricky issues that arise and we also take a brief look at what you should be doing with existing cases during the COVID-19 crisis.

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Relying on force majeure clauses

As early as possible in your communications with parents about the service that can be provided during school closures and any fee reductions proposed, schools should also consider whether they should rely on the force majeure clauses in their parent/school contracts. Force majeure clauses vary and so the precise terms of each must be considered. However, most, if not all, of them will include the current pandemic and the government restrictions in their definition of force majeure.

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Employment update - Coronavirus Job Retention Scheme

As schools, and indeed all employers, have begun getting to grips with new ways of operating in these unprecedented times, the focus of new government guidance in recent weeks has shifted to the Coronavirus Job Retention Scheme (CJRS). Many schools will be relying on the CJRS during school closures, but the CJRS is only a temporary measure, and schools should ensure that they are giving careful consideration as to how they will deal with employees when the CJRS comes to an end, currently on 30 June.

Our employment team summarise the current terms of the CJRS and consider the position at the end of the scheme.

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Summer 2020 exam grading system

Following the announcement on 18 March 2020 that all GCSE and A-Level summer exams were cancelled, concerns have been raised regarding the government's contingency arrangements for grading pupils who are no longer able to sit their exams.

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Simple steps to effective school fees recovery

The obligation to pay school fees is a contractual obligation: parents enter into a contract with a school to provide their child with an education service in return for fees.

The terms of the arrangement are set out in the Parent/School Contract, which must comply with consumer protection legislation in relation to the terms and the enforcement of them. Terms which are unfair, or might be considered unfair or onerous (for example, a clause containing an obligation to pay a large financial penalty for late payment of fees) are unlikely to be enforceable.

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Online contracts: Schools as commercial entities

Question: When is a consumer not a consumer?

As individuals, many of us will have signed up to terms and conditions when buying products or services online often without reading the terms and conditions fully, or understanding what they say. This confidence arises from the power of the consumer, in part due to the raft of consumer protection legislation that exists (in particular in respect of online contracts) as upheld frequently by regulators and the courts. Most businesses simply cannot afford to not "do right" by their customers.

Answer: When it’s a school

Unfortunately the same cannot be said for schools when purchasing goods or services whether online or by traditional methods. Whilst schools may not be seen as particularly commercial entities, under the relevant legislation, a school is grouped together with any other entity which is acting for the purposes of its trade, business, craft or profession i.e. not treated as a consumer and therefore not protected.

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Employment changes from April 2020

The Government set out a number of changes to employment law in its Good Work Plan which was published at the end of 2018, some of which came into effect from 6 April 2020. Our employment team has produced a summary of the significant changes that schools should be aware of.

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Coronavirus and the ICO

The Information Commissioner's Office (the ICO) has acknowledged that during the pandemic organisations may be unable to meet their usual standard of GDPR compliance or respond to information rights requests within the statutory timescales. Benevolent regulator that it is, the ICO has confirmed that:

"We won't penalise organisations that we know need to prioritise other areas or adapt their usual approach to this extraordinary period."

This is not an invitation to ignore all data protection requirements, however, and the ICO reminds us that:

• Where staff are working from home, they should still be subject to similar security measures as in normal circumstances, even if they are using their own devices and communications equipment;
• If you need to inform staff about cases of Covid-19 in your organisation, you should minimise the information you share and anonymise it wherever possible.

The fundamentals of the GDPR remain unchanged. You still need to:

• comply with the six data protection principles;
• identify a lawful basis for your processing of personal data; and
• identify a condition for your processing of health data.

Now would be a good time to review your privacy notices, policies and procedures including by undertaking data protection impact assessments where necessary and ensuring your records are up to date and accurate.

For further information and advice please contact Debbie Ashenhurst or your usual Wilsons contact.

This update is of a general nature and is not a substitute for professional advice. No responsibility can be accepted for the consequences of any action taken or refrained from as a result of what is said.

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