Education Matters – Compliance and Governance in the age of COVID-19

It is surely no understatement to comment that the education sector has been rocked by the impact of COVID-19 and the urgent need to dramatically adapt our ways of thinking, teaching, working and delivering education at all levels.

Much of the advice and guidance hastily published at the onset of the crisis has, inevitably, focused on continued delivery of teaching and the shift from classroom to online lessons but now, health and safety concerns have become paramount as schools and colleges tentatively reopen. Yet the governance duties of those responsible for running schools, academies, colleges and universities, and the need to ensure their legal and regulatory compliance, has also come under sharp focus as the old ways of operating have become impossible.

Delivering good governance during a national lockdown has required a great deal of energetic and innovative thinking from the education sector. Directors, trustees, governors and board members have had to respond quickly to the ever-changing landscape as social distancing and self-isolation became the ‘new normal’, whilst ensuring that their constitutional and statutory obligations continued to be observed and upheld. As ever, decision-making can be delegated, whilst legal responsibility cannot – even (or especially) during a pandemic.

Constitution and governing documents

Some institutions are fortunate enough to have governing documents that enabled remote meeting attendance and electronic decision-making. Others however have struggled with outdated constitutions or schemes, raising questions as to the validity of crucial decisions and votes taken via email, video or telephone.

The Charity Commission is committed to a pragmatic approach where appropriate, provided that decisions to operate in a particular format, or to postpone AGMs for example, are properly documented and the rationale set out clearly in the minutes. There is helpful advice on the Charity Commission’s website in this respect. The key message is that trustee decision-making should always be focused on ensuring that the charity or institution’s best interests are being met – this will include taking reasonable steps to meet immediate operational needs, even if, for now, it falls short of strict compliance with outdated or overly restrictive provisions.

We would recommend all our education clients familiarise themselves with the relevant provisions of their governing documents, and, if in doubt, contact a member of the team to advise on specific matters or concerns. Now would be an opportune time to undertake a ‘fit for purpose’ review of your articles, statutes, by-laws, scheme or trust deed, and to consider how best to ‘future proof ’ your constitution against further disruptive circumstances. As well as the practical arrangements – holding meetings, electronic voting and so on – consider what impact your governing document had on your response. Has it helped, or hindered? For example, consider how well (or otherwise) your delegation authorities have worked as crucial decisions have had to be made, and then implemented, far more rapidly than usual.

A further challenge has been the unavailability in some areas of the necessary technology to enable virtual meetings, together with, in some instances, the reluctance of governors and trustees to use new technology platforms in this way – perhaps through lack of equipment, skill or distrust. It is important in these unprecedented times to encourage our decision-makers to buy in to the concept that meeting remotely can be productive and effective. There are opportunities for all institutions and their governing bodies and boards to seek to improve upon high-level decision making, scrutiny and support whilst making positive impacts at pupil and student level.

As meetings and teaching moved online, the need for confidence in cyber security as well as the ability of governors and trustees is vital. In addition, we recommend all boards undertake a skills audit of their members, identifying where those with stronger ability can support others, and arrange training and access to equipment as necessary.

For those unwilling to embrace a new way of working, reports show that virtual meetings can encourage those less inclined to speak up to participate more and in some cases flow far more openly and equally than those held physically. Other benefits include higher attendance levels, lower hospitality costs and expense claims, and the carbon footprint greatly reduced. An attitude shift is underway, and it is important to keep abreast of it as we move forward.

Signatures and execution of documents

A particular feature of the pandemic in legal terms has been the impact of lockdown, social distancing and sudden lack of access to offices and equipment on the ability for companies, charities and institutions to validly execute documents and enter into contracts and deeds. These will need to be considered on a case-by-case basis – there has been widespread use of ‘mercury’ executed documents via electronic signature, but there are some circumstances where a wet ink or personal witnessing of the affixing of a seal will still be a hard and fast requirement. If in doubt, contact one of the team and we will be happy to advise on your specific requirements and circumstances.

Additional support

Finally, we would urge all our clients to use the resources at your disposal to help and support you adapt and enterprise. The Charity Commission and Department for Education on the gov.uk website have a wealth of information, guidance and advice available. The NCVO’s knowhow content, previously available to members only, is now freely accessible, regularly updated and added to. Free webinars and training sessions are being developed to help support you as the emphasis shifts from emergency rapid response to strategic longer-term planning in dealing with the consequences of the pandemic, and the new landscape we must together explore and develop.

This article is from the June 2020 issue of Education Matters, our newsletter for our clients and contacts in the education sector. To download the latest issue, please visit the newsletter section of our website. Law covered as at June 2020.