In the week beginning 18 May, four trade unions – the National Education Union, Unite, GMB, and Unison – jointly wrote to school and college leaders suggesting, “it is important you fully understand the potential liability you are exposing yourself to by following the current deeply flawed guidance.”
For the sake of reassurance, this is a brief summary of the legal position.
As far as employees are concerned, if members are following DfE guidance and their employers’ instructions, they should not find themselves personally liable for matters not within their control.
In the event that a mistake is made, employers are ‘vicariously liable’ for the consequences of an employee’s error. This principle means that the employer is liable for the mistake rather than the employee being personally liable.
An employee who has suffered illness or injury at work and alleges it to be the fault of another employee or employees or because of an unsafe place or system of work would be advised to bring their claim against the employer, not individual employees, because:
- the employer has insurance and/or the resources to pay any compensation
- for a claimant, it is likely to be less difficult to blame an employer for an unsafe system or place of work than it would be to identify the alleged failings of individuals which contributed to causing the injury or illness.
For these reasons, ‘employer liability’ claims for compensation against individuals are extremely uncommon.
Employers are advised to ensure that appropriate risk assessments are in place and updated at regular intervals, along with appropriate policies and procedures being adopted in line with the official guidance issued by the DfE in respect of schools and colleges opening more widely.