'Brexit and beyond: challenges for schools' - Judicium in ISBA

'Brexit and beyond: challenges for schools' - Judicium in ISBA

Posted  25th October 2019

Brexit is, of course, just one of the issues facing schools. Political risk has been thrown into sharp focus by the motion passed at the recent Labour Party conference. Political threats may come from the right as well as the left and schools need to consider the implications of Brexit alongside their responses to such political and other financial threats, says David Woodgate.

Judicium explores the key points to focus on; namely data protection, health & safety and HR/employment law. These are areas which schools should consider, independently of whether the UK leaves the EU on 31 October, with or without a deal.

Data Protection

Steps to take in the event of a no deal Brexit:

If we leave the EU without a deal then schools may need to update their contracts and privacy notices with third parties to allow them to share personal data outside of the UK. The reason for this is because there won’t be an agreement between the UK and EU which deems the UK as having an “adequate” level of data protection. Therefore organisations will need to put set clauses in their contracts and notices in order to make them “adequate” to transfer data outside of the UK. In the event of no deal we would advise the following actions to be taken:

    • To continue to work towards GDPR compliance in the normal way as this will still continue to apply in the UK after 31 October. This includes, where necessary, reviewing policies and procedures, implementing training, and appointing a DPO.
      Whilst a DPO is not mandatory for independent schools, we’ve noticed a number of schools appointing an ‘Independent DPO’ as a matter of best practice and ensuring they are being given correct and up-to-date advice.
      A DPO is useful if any parents are located overseas (especially outside the EU). This is because the transfer /receipt of pupil/financial data will need to be properly managed and overseen by the school; in accordance with good corporate governance principles.
    • To consider whether you use any third parties that transfer personal data outside of the UK. If you are unsure you can ask the provider directly. This includes providers who store data on cloud-based systems.
    • If any of those providers do process data outside of the UK to consider whether those contracts/ agreements/notices need updating to make them compliant in the event of a no-deal. This is likely only going to be achieved with the assistance of that provider.

Steps to take in the event of a no deal Brexit:

If we leave with a deal then it is likely that there will be provision for the UK and EU to recognise each other as “adequate” for the purposes of transferring data in and out of the UK.

In this instance there isn’t anything that necessarily needs to be done to your contracts and agreements and you should continue to work towards GDPR compliance in the normal way.

If there is an extension to the deadline then, as with the advice above, continue to work towards GDPR compliance. In all scenarios, the GDPR will continue to apply in the UK.

The final word can only be left to the ICO, which recently said:

”The focus for the second year of the GDPR must be beyond baseline compliance — organisations need to shift their focus to accountability with a real evidenced understanding of the risks to individuals in the way they process data and how those risks should be mitigated. Well-supported and resourced DPOs are central to effective accountability.”

Health & Safety

In the event of no deal, the Health and Safety (Amendment) (EU Exit) Regulations 2018 will come into force on exit day. These regulations ensure that EU—derived health and safety protections will continue to be available in domestic law after the UK has left the EU. So no further action is required as there will be no changes to the requirements or regulations.

One area that schools should consider (with or without a deal) is travel to the EU for school trips.

There is detailed guidance on the Government’s website but there are several things you need to do before you travel including:

      • check passports
      • get travel insurance which covers healthcare (NHS website provides detailed information); and/or 
      • check drivers have the correct documents

According to the European Commission proposals you will not need a visa for short trips up to 90 days. Schools should also review government guidance on taking sports teams or performing arts groups into the EU. This relates to import and export declarations for goods which is not strictly health and safety but if you are taking items for events there will be certain processes you may wish to consider before, during and after your trip.

HR/Employment Law

The general worker rights and employer obligations will remain the same. However, the following key areas will beaffected in the event of a “no-deal” exit.

Qualified Teacher Status (QTS): currently EU, EEA and Swiss qualified teachers have the right to have their professional status and qualifications considered for the award of QTS. Those who have QTS before 31 October 2019 will continue to retain that  status afterwards. Teachers who have applied for QTS before 31 October 2019 will be able to continue with their application under the existing system as far as possible but post-Brexit, a new system will be introduced and the reciprocal recognition will cease.

Teaching restrictions: EEA professional regulating authorities will no longer be required to automatically share details of any sanction or restriction imposed on teachers with the Teaching Regulation Agency (TRA). This will mean that schools will need to carry out the same safer recruitment checks for applicants who have lived or worked outside the UK as they currently do for all other staff.

Immigration: if any staff members are (or if they have a family member who is) an EU, EEA or Swiss Citizen, they may need to apply to the EU Settlement Scheme if they want to continue to live in the UK after 31 December 2020.

From 2021 EU nationals wanting to study in the UK will require a Tier 4 student visa and they will not be eligible for state boarding places unless the schools obtain a Tier 4 licence.

ID checks:  employers will not need to identify whether an EU/EEA/Swiss national worker first entered the UK before or after 31 October 2019 but will simply need to check a job applicant’s right to work in the same way as now until 1 January 2021.

TUPE: it is possible that this is an area of employment law that may face some changes post—Brexit (although not immediately).  

In conclusion, the reality of Brexit is one yet to be defined, but there are various areas which schools could review, plan, prepare for, and work towards, ensuring that all staff and pupils are prepared for any eventuality.

Craig Stilwell is Head of Data Protection team  at Judicium’s Education, a professional services company working with more than 1,700 schools across England. Judicium Education advises on health and safety, HR, legal services, clerking, governance and data protection.

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