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Coronavirus and legal liability

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It has come to our attention that four of our colleague trade unions - Unite, GMB, Unison and NEU - have written to school leaders reminding them of their and their employers’ health and safety responsibilities. 

NAHT welcomes the engagement of colleagues and their trade unions and their offers of support in trying to move towards what we are all trying to achieve: the safe reopening and wider opening of schools. 

NAHT also shares their concerns about the absence of clear scientific evidence supporting the Department for Education's (DfE's) guidance. 

While we assume our colleagues in other unions do not intend to cause our members undue anxiety, we wish to reassure NAHT members that they should not feel intimidated by references to ‘legal rights’ and ‘potential liability’. 

Employees are and have always been entitled to bring claims for financial compensation against their employers for injuries or illness sustained as a consequence of their employer’s negligence or breach of duty (in the case of maintained community schools and community special schools, the employer is the Local Authority; in maintained voluntary aided and foundation schools, it is the governing body, and for academies, it is the academy trust or MAT). 

This letter does not alter the law,and for the most part, it is consistent with the slightly more comprehensive advice on health and safety in schools issued by NAHT. 

If members are following the DfE's guidance and their employers’ instructions, they should not find themselves personally liable for injury or illness sustained by colleagues. Individuals cannot be liable for matters not within their control. And even if, as is certain to happen, mistakes are made employers are ‘vicariously liable’ for the consequences of employees’ mistakes. The principle of vicarious liability means that the employer is automatically liable for any failings on the part of any employee. 

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 individual’s are extremely uncommon.

First published 21 May 2020