An Update from our ELT Sector and ILEP specialist Law Firm, MP Moloney.
Two months ago I did something controversial knowing that it was the right thing to do.
I practice in the area of visa required education for English study now known as the ELT Sector. I have a number of English language Schools in Ireland as clients and I was involved in the formation of one the two main ELT representative groups now operating and consulting with Government. For those unfamiliar with the sector, Ireland has developed a lucrative market in the field of education of foreign non-EU/EEA students by way of a study visa programme. Students can travel and remain in Ireland on the particular conditions of the Stamp 2 study visa. Qualifying colleges and ELT schools must be registered on a Government administered list, now known as the Interim List of Eligible Programmes, the ILEP. The regulations governing admission to the List are quite stringent. Students travel from Brazil, central America the UAE, China, India, Pakistan and other countries. The age profile of the students is typically within the eighteen to thirty age bracket.
ELT schools closed in March 2020 in line with the original lockdown in Ireland. Since then the colleges have had to endure a topsy-turvy cycle of open and close again dictats from the relevant Government Department. Classes have moved online as with all mainstream education with the added pressures of the Colleges having to ensure that attendance levels of remote learning students are maintained at a minimum of 85% with the online classes.
This brings us to the events of December 2020. For some inexplicable reason known only to the relevant Department pressure was applied to ELT in schools in particular to open for face to face education at this time. A failure to open was being identified as grounds for sanction. Sanction in the ELT sector means removal of the college from the ILEP. Removal from ILEP means closure of the business, in proven reality. Bearing in mind that the age profile was being identified as the super spreader group and also that the students themselves had originated from foreign jurisdictions, significant concerns were communicated by one of the representative groups to Government about the questionable logic and most certain risk to public health by allowing the resumption of face to face education. This was particularly the case where by that time the online education model had proven itself effective by and large. This organisation went so far as to procure an opinion from an Infectious Disease consultant that the resumption would result in an increase in the numbers of Covid-19 in the community.
Notwithstanding the genuine concerns raised, the Department pressed on with its mandate to the ELT Schools to open for face to face education in December, otherwise face sanction. I was then approached by my Client about the risks of re-opening and how to deal with them. A working document had been released about protocols for operating safely in Covid-19 a lot of which had little regard for the nature and type of the premises from which the majority of ELT schools operate.
All businesses are aware of their responsibilities to staff, patrons and customers and to provide a safe place of business. Insurance premiums in Ireland increase exponentially in some cases over the course the years of any business as result of claims made by employees or customers. Retail shops, fast food and hospitality businesses face the highest increases in my experience. ELT Schools are places of moderate risk to litigation for injuries sustained by staff or students. That landscape dramatically changes with the risk of Covid-19 infection.
Also relevant to my considerations at that time were the ever increasing indications by the insurance industry that it would seek to deny or refuse cover for Covid-19 related events.
The success of an injury case involves the creation of a liability on the Defendant, on the standard of “more likely than not” that harm was caused as a result of the act or negligence of the Defendant. To meet the standard for claims related to Covid-19, the Court will typically require expert evidence that the actions of any Defendant business were not in compliance with best practice then adopted for the prevention of the spread of the disease. Nobody can say with surety what the best practice is, apart from total isolation. However, there is a phrase I have commonly used with Clients and that is that “hindsight is the curse of everything we do”.
The limitation period for PI claims in Ireland is two years. It can therefore be expected that within that time frame a field of expertise will come to light about best practice in industry for the prevention of the spread of Covid-19. Parties will become known as respected experts in this field. Those parties will then be presented to Court to critically assess with the benefit of science only then known, the actions of businesses from a negligence point of view.
Putting all of these considerations together I prepared waiver of liability related to Covid-19 to be signed by staff and students alike. My Client made its execution mandatory prior to allowing them to resume face to face education at the college premises. In a social media world, this event caused controversy across the platforms and has been acknowledged with some notoriety and even press coverage. I was asked by the Department of Education in Ireland to explain my reasoning. I did so unapologetically. I have not received any logical counter-argument or comfort from Government that such risks would be dealt with by legislation.
The position therefore stands, so long as Covid-19 remains a risk, it remains a risk to business from a liability point of view. In my concerted view ALL businesses should be considering a waiver for claims related to Covid-19. For my part I have passed my recommendation to all my Client colleges. Some have implemented my advices, others have not. Following all of the upset and uncertainty over re-opening, the Colleges were then mandated to close again in January of this year. They remain closed most likely until April or May it appears.
In summary we as lawyers have to consider the unlikely event in every analysis we do. Covid-19 is here. It is a dreadful reality but a reality nonetheless. I am regrettably confident that a swathe of injury cases related to Covid-19 is in the near future for businesses unless the Government addresses the matter through legislation. I do not hold out hope of that happening. Until then I will press my business clients to build in waivers and limitations into their contracts to protect them from such litigation.
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