The current situation relating to the reopening of schools in January 2021 is fast moving and has left many school communities and school leaders feeling confused. In addition, mounting union pressure for schools to close and staff not to attend work is making operations increasingly difficult.
The reality is of course not much different to what schools faced at the end of the first lockdown. Trusts/schools have been managing the risks since March 2020 and on full reopening of schools in September 2020. We advised then that a co-ordinated approach is sensible but that local decisions would need to be made as to what would be appropriate for each setting and indeed each member of staff and their individual circumstances. The benefit now is that we are building on a well-developed picture rather than starting from scratch and this is the message that should be communicated by schools to all staff and parents. Schools should continue to reinforce the message that anyone who is displaying symptoms of Covid-19, or who have someone in their household who does, and / or anyone who has come into contact with someone who has tested positive for coronavirus must not attend the school site and should notify the school if this is the case. You should already have processes in place relating to suspected and confirmed cases of Covid-19 within the school community, and isolating bubbles.
From a staff perspective, some unions are advising members not to attend work by invoking their rights under section 44 Employment Rights Act 1996 (ERA 1996). We are aware that a number of clients have received letters from staff stating that they will not be attending the workplace due to reasonably believing that there is a serious and imminent danger which they could not be reasonably expected to avert. An employee cannot suffer detriment for asserting such a right.
Fundamentally, schools are expected to follow the latest government and Department for Education (DfE) guidance to undertake risk assessments and to keep those under regular review. This would be the main defence to a claim under section 44 ERA 1996. Each School should seek local Public Health England (PHE) advice as to the level of risk in their local area and whether additional measures need to be taken beyond the ones required by the DfE. If the risk level in individual schools increases due to local circumstances (and testing is really the only way to assess this) then additional measures may be needed. Has your school taken a position with regard to testing if you are a secondary school? Is testing feasible in your setting? Or should we say, how quickly is testing feasible? These are all questions that you need to be thinking about.
As well as the risks posed by the coronavirus, schools will also need to consider whether they will have enough staff available in order to safely open the school.
Following a review of the risk assessments and the latest DfE and local PHE advice, we suggest that the governing board should be involved in the initial stance on whether or not pupils should attend the school site (subject to Government guidance relating to secondary schools and areas where local restrictions on school attendance are in place). Day to day decisions could then be made by headteachers with input from the governing board as and when required. It is important to remember that individual schools / trusts will be accountable for decisions about whether or not to reopen the school regardless of any position being adopted by your local authority or other schools in your area. There is a risk that the Secretary of State could issue a direction to schools that have decided to close which orders them to reopen, so you need to be able to justify any decision not to open which goes against DfE guidance. Any school in receipt of such a direction should obtain urgent legal advice.
In terms of dealing with staff potentially not attending work, you should consider issuing a communication to staff about steps already taken to ensure a Covid-19 secure environment and an expectation that they will return to work as required. Any staff communication needs to be focused on the individual risk assessments and should remind staff to communicate concerns and any changes in personal situations to their line manager so that the risk assessment can be reconsidered – these should be under regular review anyway. You should also give some thought to your position on clinically vulnerable and clinically extremely vulnerable staff. In areas where there is a tier 4 restrictions, CEV staff are advised to work from home where possible. This is going to make planning to reopen really challenging again but schools should remind staff that decisions about maintaining teaching and learning and supporting pupils are made in partnership and therefore the views of staff are really important. It is also important to avoid kneejerk reactions.
Finally, it is important to acknowledge that a situation where staff are on full pay but not attending the workplace because of health and safety concerns, and as a result the Trust/School having to pay supply staff, is unsustainable long term from a cost perspective. Inevitably a time will come where Trust/Schools may need to make decisions about pay for staff refusing to return to work where reasonable steps have been taken to ensure their health and safety at work, and the school is operating in line with government and DfE guidance. This should be handled carefully due to the risk of a detriment claim. We are able to prepare a Covid-19 unpaid leave policy that will set out the framework for how to deal with such scenarios and circumstances when pay may be stopped. Such a policy would also prove helpful in relation to staff with caring responsibilities. A well drafted policy would help ensure that all staff are treated consistently.
If your school receives any correspondence from unions or members of staff which raises concerns about returning to school, or you would like a Covid-19 unpaid leave policy prepared, our Schools HR team can assist. Please contact 0345 026 8690 or schoolsHR@wslaw.co.uk to speak to a member of the team for further advice.
We will provide further updates on testing in secondary schools and other issues affecting schools at this time.
This article is subject to any further guidance which may be issued by the Government. We will continue to monitor the situation and provide guidance on how any further developments impact the education sector.