School reopening and COVID-19 risk assessment FAQs

Will the school or any individual be prosecuted for corporate manslaughter if someone contracts coronavirus and dies?

An individual cannot be charged with corporate manslaughter as it is an offence that only relates to corporate entities. An individual can be prosecuted for gross negligence manslaughter. There are a number of factors that make a prosecution for an offence of this nature extremely unlikely if not, at present at least, impossible. Firstly, there would have to be a gross breach of the duty of care owed to employees and others. These are serious offences reserved for the most grave breaches of duty usually where there are a lack of systems in place and no management at all of the risk identified. Most schools will have entrenched health and safety systems already and will no doubt prepare risk assessments to follow government guidance. Secondly, if government guidance is followed and suitable and sufficient risk assessments drafted and then followed, it is difficult to see how a prosecution for any health and safety breach can be justified in the public interest. Thirdly, in the cases of a death from Coronavirus it is necessary to establish where the virus was contracted. At present it would seem to be impossible to prove where a person contracted the virus so a case of manslaughter would not be able to be established.

Will the school or an individual be prosecuted for any other Health and Safety offences if a person falls ill or dies from Coronavirus?

The general duty on employers under the Health and Safety at Work Act 1974 is to ensure so far as reasonably practicable the health, safety and welfare of their employees, and the health and safety of non-employees. Providing the guidance is followed and the risk assessment is suitable and sufficient then it is difficult to see how a prosecution would follow under the Health and Safety at Work Act, in the event of someone associated with the school contracting coronavirus, as by following the guidance they will have undertaken all that is reasonably practicable. In the event that a school has not followed the guidance or there are other shortcomings our view is that the starting point is more likely to be that the HSE will engage with schools to ensure they tighten their processes rather than move straight towards an investigation with a view to prosecution.

Will a school be sued for damages if a person contracts coronavirus?

In order to establish liability a claimant would have to prove :

  1. There was a duty of care from the school to the person to protect them against the risks to their health and safety. In the case of a pupil or member of staff that would be simple to establish.
  2. That there was a breach of the duty. That may be difficult to prove if government guidance is followed. Given we are told that has been prepared on the basis of expert advice a starting point may be that everything reasonably foreseeable has been undertaken to meet the duty of care.
  3. The claimant would have to prove that they contracted the virus at work. It seems to us that, at present at least, that is going to be very difficult to establish if not impossible. It is possible that if track and trace apps are deployed in the future and they show a cluster of people all associated with a school having caught the virus that on the balance of probabilities a court might accept that, but our view at present is very much that such cases are highly unlikely to succeed. Notwithstanding that there may be a test case, albeit not necessarily in the education sector.

Where there may be more likely to be a risk in terms of a claim is in relation to staff who are covering more than their own usual job as a consequence, and suffer stress as a result of poor management.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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