On 8 March 2021, all schools and colleges across England will have been expected to reopen to all students to provide face-to-face learning, although secondary schools and colleges can operate a phased return in the first week to allow for mass testing. After that, all students will be expected to attend school in the usual way unless they are shielding, vulnerable or are self-isolating.
Unions have expressed their disappointment with the Government’s decision and we expect that many people working in the education sector will feel anxious about the return. This can bring with it some challenges for senior leadership teams when trying to efficiently manage the return of both students and staff. We have sought to outline some key questions that educational institutions may be asking over the course of this week.
There will be members of staff who are reluctant to return to school. This may be linked to worries over their own personal wellbeing, or the wellbeing of their family members.
Under the Employment Rights Act 1996 (ERA), an employee is protected from (i) being subjected to any detriment by any act, or any deliberate failure to act, by his employer; or (ii) being dismissed by his employer:
As such, an employee is protected where they have a reasonable belief of serious and imminent danger. In these circumstances, an employee may be entitled to refuse to return to work, or to propose measures for the school to implement to alleviate the danger. If an employee believes that he/she is subjected to a detriment because of this, he/she may be entitled to bring a claim to an Employment Tribunal. As such, where an employee refuses to return to work, schools should be mindful as to how to respond.
A detriment may range from a change to their usual terms and conditions to disciplinary action or suspension. The key question will be whether the employee’s view is reasonable. This will depend on several factors. For example, (i) Government guidance in place at the time; (ii) any detailed and up to date risk assessments carried out by the school which identify the risks and set out the proportionate control measures in place to mitigate them (ideally with employees’ involvement and feedback); and (iii) correspondence from the school/college outlining these measures and providing clear communication channels for staff to use if they have any particular concerns.
Ideally, schools should address this potential situation under their risk assessments and adopt a suitable procedure to follow where these circumstances materialise.
The Government guidance is clear that a symptomatic individual should be sent home and advised to follow the “guidance for households with possible or confirmed coronavirus (COVID-19) infection“.
If a child is awaiting collection from the school by their parent or guardian, they should be moved, if possible, to a room where they can be isolated behind a closed door, depending on the age and needs of the child, with appropriate adult supervision if required. Ideally, a window should be opened for ventilation. If it is not possible to isolate them, they should be moved to an area which is at least 2 metres away from other people. If they need to go to the bathroom whilst waiting to be collected, they should use a separate bathroom if possible. The bathroom must be cleaned and disinfected using standard cleaning products before being used by anyone else.
If a distance of 2 metres cannot be maintained (such as for a very young child or a child with complex needs), PPE (such as a face shield) must be worn by staff caring for the child while they await collection. Any member of staff who has provided close contact care to someone with symptoms (whilst wearing PPE or otherwise), and all other members of staff or pupils who have been in close contact with that person with symptoms, (whether or not if wearing a face covering), do not need to go home to self-isolate unless:
Members of staff who are clinically extremely vulnerable are advised to shield and therefore avoid attending work. The guidance advises that “Staff should talk to their employers about how they will be supported, including to work from home. Schools should continue to pay clinically extremely vulnerable staff on their usual terms.”
Those who are shielding are entitled to Statutory Sick Pay (SSP). However, the guidance is ambiguous as to whether schools who adopt the Burgundy Book provisions must continue to pay those who are clinically extremely vulnerable their full pay (being six months full pay during the first six months of absence under the Burgundy Book) where they are unable to work from home in any capacity. Contractual sick pay under the Burgundy Book is contingent on the individual being ill (as opposed to them receiving SSP). Unions have taken the view that full pay should be provided during this period and will likely push back where only SSP is provided, on the basis that it breaches the employee’s contract. However, there is scope to argue that full pay is only due where the employee is able to carry out some form of alternative work from home.
With this is mind, a cautious approach to reducing pay should be taken on the basis that anyone who is clinically extremely vulnerable may be disabled within the meaning of the Equality Act 2010. Where the school has reason to believe this is the case, it will need to be mindful that it is not subjecting a member of staff to discrimination because of their disability. They will also need to consider reasonable adjustments – such as alternative duties to enable them to continue to work.
Anyone who is living with someone who is clinically extremely vulnerable, or where someone is classed as clinically vulnerable, can still attend work where home-working is not possible.
We have received several queries regarding how pregnant staff should be treated, particularly surrounding whether they should attend work after 28 weeks of pregnancy. The guidance clarifies that pregnant women are classed as “clinically vulnerable” (rather than “clinically extremely vulnerable”). It therefore follows that they can still attend work where home-working is not possible.
Nonetheless, pregnant staff should be considered under the school’s risk assessment and, whilst there is no obligation, it may also be beneficial to carry out a separate individual risk assessment for each pregnant individual. Employers should consider whether adapting duties and/or facilitating home working may be appropriate to mitigate risks, particularly for pregnant employees after 28 weeks’ gestation, or with underlying health conditions, both of whom may be at greater risk of severe illness from Covid 19.
The guidance is clear that, under national lockdown, in settings where pupils in year 7 and above are educated, face coverings should be worn by adults and pupils when moving around the premises, outside of classrooms, such as in corridors and communal areas where social distancing cannot easily be maintained. It goes onto recommend that face coverings should be worn in classrooms or during activities unless social distancing can be maintained. This does not apply to younger children in primary schools and in early years settings. Previously, the Government only advised wearing masks when in corridors and communal areas where social distancing couldn’t be easily be maintained. Schools should have a process for managing face covering in school that is communicated clearly to pupils and staff.
The guidance also makes it clear that some students and staff are exempted from wearing face masks. This applies to anyone who:
Where an individual does not wear a mask (whether exempt or not), this should be factored in to any risk assessment. If a member of staff who is not exempt from wearing a mask refuses to wear one, the school should try to understand the reasons behind the refusal.
You may be able to discipline anyone who doesn’t have a legitimate reason for not wearing a mask, on the basis that they are disobeying a reasonable management instruction. Given the novelty of this situation, at the time of writing, we are aware of only one Employment Tribunal judgment where dismissal following an employee’s refusal to wear a masked was fair. Please see our case update here for more information. It should be noted that this decision was fact specific and an employer’s decision to dismiss an employee for refusing to wear a mask will not always be deemed fair. As always, it will be of paramount importance to follow the school’s disciplinary procedure.
Finally, the guidance also notes that ‘no one should be expelled from education on the grounds that they are not wearing a face covering‘.
The Government has produced guidance on testing in schools (found here) and confirmed that rapid testing using Lateral Flow Devices (LFDs) will support the return to face-to-face education by helping to identify people who are asymptomatic.
All schools and colleges should offer regular twice weekly testing to their staff. Testing is not mandatory for staff and they do not need to provide proof of a negative test result to attend school or college in person, although participation in testing is strongly encouraged.
For consenting secondary school pupils, they will take the first three tests in school before moving to home testing. Such testing can be phased during the week commencing 8 March, to manage the number of pupils passing through the test site at any one time. The school should offer 3 tests, 3 to 5 days apart and vulnerable children, children of critical workers, and children in years 10 to 13 should be prioritised. Testing is voluntary but strongly encouraged. The school must have specific consent to test the pupil as it will constitute processing their special category personal data. Data protection laws require the consent form for children (i.e. anyone under 18) to be in ‘clear language that they can understand’. Where the school believes that the child is not able to understand and give their consent, the child’s parents should provide consent on their behalf.
Individuals with a positive LFD test result will need to self-isolate in line with the guidance for households with possible coronavirus infection. It appears that this is even the case where the pupil later tests negative via a more reliable test. Those with a negative LFD test result can continue to attend school unless they have individually been advised otherwise by NHS Test and Trace or Public Health professionals (for example as a close contact).
Staff in primary schools will continue to test with LFDs twice a week at home, as per existing guidance on testing for staff in primary schools and nurseries. Primary age pupils will not be tested with LFDs.
Currently, the Government has no legal basis on which to force individuals to be vaccinated. It is instead setting out to persuade individuals that the vaccines are safe and it is in the population’s best interest for as many people as possible to get vaccinated.
The Health and Safety at Work Act 1974 provides that employers must take all reasonably practicable steps to reduce workplace risks to their lowest possible level. Whilst this does not necessarily include providing “in-house” vaccinations, it can include encouraging staff to take the vaccine when they are offered it, in order to reduce the risk of spreading the virus across the workforce. Likewise, employees have a duty under the Act to “to take reasonable care for the health and safety” of themselves, although the impact of this clause in relation to Covid-19 vaccination has not been explored in the courts.
Some employers are saying that they will require all employees to be vaccinated, unless they have a reasonable reason for refusing. However, decisions to dismiss on this basis should be treated with caution. There may be alternatives available which should be considered first, such as requiring permanent homeworking or a temporary change of role to reduce contact with vulnerable individuals. Where someone unreasonably refuses to have the vaccine following a reasonable management request and there are no alternatives it may, in some circumstances, be acceptable to dismiss.
Under general discrimination law, school’s will also need to ensure that their practices and policies in place regarding the vaccine do not adversely affect a group of people with a protected characteristic (for example, those with a disability). For further information, please see our article on “No jab? No job!” here.
