30 Jun 2020

Charities have been dealing with the impact of COVID-19 and considering how to move forward as we come out of lockdown. We take a look at some frequently asked questions for arts, faith-based charities, schools and universities.

Faith-based charities

How does the charity put in place suitable safeguards to enable the building to reopen?

  • A risk assessment is a must. This will enable a charity to decide whether it is safe to reopen a place of worship for the permitted purposes and, if so, how. For example, how distancing can be maintained (this may require imposing a maximum capacity threshold), whether a one way system is required, provision of sanitiser, clear signage etc
  • Consider the demographic of those who may use the space and whether there is likely to be a high proportion of particularly vulnerable. Consider what additional requirements may be needed to accommodate this, such as having certain times reserved for these people
  • Use of communal or shared reusable resources should be avoided
  • If the place of worship is a workplace, you will also have responsibilities as an employer under health and safety law
  • A duty of care is owed to volunteers who are engaged to support with reopening, so charities should ensure that as far as reasonably practicable they are not exposed to risks to their health and safety.

Arts and cultural charities

How can we put in place suitable safeguards to enable re-opening?

A risk assessment will be necessary, and in all likelihood concert halls and opera house /theatres will sadly be amongst the last venues to re-open. Galleries and museums might be able to re-open sooner as social distancing is more straightforward, with the possibility for reduced numbers in attendance and one way systems running through the venue.

What if we open and people get sick – could liability attach to us?

The important thing will be to ensure compliance with the legislation and government guidance as it exists at the time of the relevant performance/exhibition. If you have taken all steps necessary to comply with the law, but an audience member / gallery attendee fails to comply with, e.g. social distancing rules (as they are then in force) or the test and trace regime (for instance they fail to self-isolate when they should), we would not expect liability to attach to the venue, although each case would need to be examined on its own merits.

We want to introduce temperature checks on the door of our venue – is this OK?

We would not expect this to be a problem, and many service providers in other sectors (for example healthcare providers) were doing this pre-lockdown. Clearly, managing a situation where someone has a high temperature is important and should be handled sensitively, particularly if that individual does not want to leave the venue.

Another point to consider is practicality – will you have the resources and manpower to check the temperature of even a reduced audience?

What about the practicalities of disinfecting and cleaning between events?

This will certainly be one of the key challenges, especially for large venues. It is likely that reduced audience sizes (a necessary consequence of social distancing) will make this task slightly easier, but there will be effects on the number of cleaning staff required and, for example, the need for proper PPE to protect those individuals.

Schools

We are expecting a number of subject access requests about grading and ranking when GCSE and A level exam results are published in August. What if we receive too many to handle?

The Information Commissioner's Office (ICO) published a document containing its regulatory approach during the coronavirus public health emergency on 15 April 2020. This is being kept under review and further updates may be given by the ICO.

This year is unique because instead of exams, schools have been asked to grade and rank students based on their work.

There is an expectation that some students will make subject access requests to try and understand how they have been graded and placed. The ICO has said that it recognises that there may be a reduction in organisations' resources which could impact their ability to respond to SARs where they need to prioritise other work due to COVID-19. It is still of course worth doing your best to comply with the requirements of the SAR regime, and there has been no change to the actual law on response times, but this approach from the ICO means it is likely to take the pandemic into account.

Hopefully schools would have kept sensible and well organised records about how they have reached their decisions about grading and ranking students. This will allow schools to handle the volume of requests more easily. It will be important to separate data out and not disclose data relating to another student, who was perhaps jostling for position in the year group with the data subject who makes the SAR.

As with normal years, if a SAR is made before results day for data relating to a decision that has been made by the school on grades, the school does not need to respond until 40 days after the results publication date, in line with an exemption in the data protection legislation. If the SAR is received from a student after results day, a one month response period would apply.

We would also expect to see agreement from the student to the SAR, if the request itself happens to come in from their parent.

Universities

Does consumer law continue to apply to universities during the pandemic and the route out of lockdown?

Yes. The Department for Education has said that it is important that consumer protection law obligations continue to be met by universities, including the provision of information, terms and conditions, and complaint handling. This includes the importance of making prospective and current students aware of any potential for changes at the earliest opportunity.

The Competition and Markets Authority (CMA) has also published some short notes online setting out its general views on COVID-19 – but these apply to the whole consumer sector including retail and travel as well as education.

The CMA makes it clear that the law remains unchanged and that it expects business to be making refunds in cases where they are due where services are cancelled or not provided. In most cases, we expect that universities have been looking at ways to deliver courses in another way.

It is worth noting that the government has confirmed that full tuition fees will be due next year, including where course are delivered online.

Most students were deciding by 18 June 2020 whether or not to accept university offers for the 2020/21 academic year. Many universities have decided to change the way they are delivering courses and they are expected to have been in regular contact with students regarding any proposed changes