Coronavirus Act 2020: initial thoughts on implications for universities, colleges and independent providers

Coronavirus Act 2020: initial thoughts on implications for universities, colleges and independent providers

It’s lengthy and detailed and we will provide further thoughts on its implications in the coming weeks, but we’ve identified some initial areas we recommend institutions start thinking about.

Providers with health care provision

There are provisions in the Act for the emergency registration of nurses and other health and social care professionals. These will allow groups of students (initially those in their last six months of training) to be admitted to the relevant registers on the basis that they are “of a type” who can reasonably be considered fit, proper and suitably experienced to fulfil this role.

Institutions may want to start thinking about what to do in respect of students where there are known concerns about fitness to practice or where fitness to practice proceedings are underway but not yet completed. This may add to an already complex scenario where staff are trying to deal with other changes from the relevant accrediting bodies around the introduction of emergency standards, modifying the split between theoretical/practical hours on courses and requirements for supervision and monitoring of students on placement.

Emergency volunteering leave

There are new provisions relating to unpaid leave for emergency volunteers which could add to staffing pressures and institutions need to plan for how they will accommodate it. Under the Act, employees are entitled to return to return to the same job on the same terms and conditions and must not be subjected a detriment by any act or failure to act on the part of the institution on the grounds that they took emergency volunteering leave.

Temporary closure and continuation orders

Potentially the most significant provisions in the Act for the higher and further education sector are those relating to temporary closure orders and temporary continuation orders. Under these, institutions may be ordered to close in whole or in part, to remain open in whole or in part, on such terms as the order specifies where the Secretary of State concludes on medical and scientific advice that this is a necessary and proportionate step. These orders will set out in detail exactly what the closure/continuation should entail and failure to comply can be enforced by a court order. The Secretary of State can authorise the OfS to discharge these functions on his behalf.

The Government’s impact assessment for this section states (rightly in our view) that orders under this section should be regarded as a force majeure event for the purposes of an institution’s contractual obligations. However, institutions should note that unless such an order clearly and unarguably within the scope of the force majeure clauses in their contracts with students, other customers, funders or suppliers, they may not have the protection of those clauses in the event an order under this section is imposed. Institutions should also review their business continuity arrangements and plans and their insurance policies to see whether any modifications are needed to address the possibility of this new type of external intervention. The impact assessment also recognises that the government may need to divert additional funding to institutions affected by these orders, but it is not clear how this will be done.

The provisions for institutions are clearly very complex and we are here to guide you through.  To discuss any of the above issues please contact Smita Jamdar, or another member of the education team in your local office.

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