- Can I ask a TA to lead groups?
Yes, if they are under the direction of teachers, subject to the contract being flexible enough to allow the assignment of additional duties to them.
- How do I know whether staff will be able to attend on 1 June and who might have issues?
Reporting procedures, if not already done so, should be clearly communicated to all staff. The current guidance states that schools should start planning for a return and this involves communicating with staff as to their availability i.e. those who are shielding. This is covered in the initial planning framework from the Department for Education:
Please ensure if you use this document it is the most up-to-date version.
- Teachers may be asked to teach/supervise pupils in school while also setting work for pupils in the same class who are at home – is this okay?
In principle this could be done, subject to compliance with the teachers’ contracts of employment. Albeit extra time may need to be given to teachers to enable this to be put into practice. This may mean shorter lessons for a temporary period. However, schools will need to consider the trade unions’ stance during school closure which is that teachers should not be planning or delivering lessons at the moment. We anticipate that this will be lifted when schools re-open and remote sessions could be delivered by those who have to work from home. However, we do not know what the unions’ approach is going to be in this regard.
- If we decide to keep children in classrooms and have staff move around the site and teach in different rooms (to minimise foot traffic), can this be challenged by teachers?
In our view, in principle, this is a reasonable employer request in the interests of health and safety for the staff and children and therefore potentially unreasonable for a member of staff to refuse. There is likely to be enough flexibility in the contract to permit this although individual contracts should be checked. However, we understand from the DfE guidance that this is not what is anticipated and that teachers and support staff should remain with one group.
- What if staff refuse to return or cannot return due to childcare issues?
If the school of the staff member’s child / children is considered safe in line with the Government guidelines and their own risk assessment then any failure to return is a choice on the part of the employee. But if the employee believes it is unsafe to return as the threat of catching coronavirus is too serious then a conversation should take place and alternatives could be recommended.
We would suggest that a discussion should take place with employees as to whether work can still be carried out at home or there should be a reasonable timeframe given for staff to find alternative childcare (bearing in mind childminders are now open and working). If staff are still unable to return then parental or unpaid leave could be considered.
An employee can take time off work to look after dependents. This provision is intended for short periods of absence and there is no statutory right to be paid.
- What happens if a member of staff lives with someone who is clinically vulnerable/ clinically extremely vulnerable and doesn’t feel comfortable returning to work due to the risk to those at home? What about early years?
The DfE’s guidance states that if a member of staff lives with someone who is clinically extremely vulnerable that the member of staff can return to work as long as social distancing can be adhered to. In some settings this may not be possible, e.g. early years, so the option to work from home should be considered. If social distancing can be adhered to and it is safe for the member of staff to attend then they should be encouraged to return.
If a member of staff lives with someone who is clinically vulnerable they should attend school as normal.
- Can we expect teachers to wipe down desks and chairs between classes to maintain hygiene of their rooms?
By way of first principles, this in essence is not a teachers’ role. In our view trade unions are likely to object to any requirement on teachers to clean. Schools could ask teachers and there is likely to be a degree of goodwill involved but any requirement is in our view unreasonable. If teachers do agree to clean, attention will also need to be paid to the amount of time spent doing this.
- Can we instruct support staff members to take up cleaning duties?
Again, this is not usually a member of a support staff’s role and individual contracts of employment will need to be considered. We would question whether support staff are best placed carrying out their usual duties as these are clearly extremely valuable.
- Is there any expectation that schools will be open over the summer?
We are not aware of any plans for the schools to open over the summer.
- What if staff don’t feel safe or are anxious about returning?
We would recommend communicating the steps that you have taken as a school to make the workplace safe including risk assessments. This may ease nerves of anxious employees. We would also encourage workplaces to involve their staff and trade unions in planning the return. However, there will be staff who are still unsure about returning.
Anxiety caused by the coronavirus pandemic was seen prior to school closures and we would reiterate our advice previously which was that in principle, if an employee is anxious about (but not sick with) coronavirus it is arguable that they are choosing not to work. In this case, following the “ready and willing to work” principle, an employee would not have a right to be paid. However, an employer should be mindful of the Equality Act and of those employees with disabilities which put them at a higher risk from coronavirus. ACAS guidance states that employers should offer flexible working or mutually agree that the employee should take annual leave, or unpaid leave. If an employee suffers with coronavirus-related anxiety, this may make them unfit to work and thus eligible for time off and sick pay.
- What happens about those returning staff that are vulnerable?
Clinically extremely vulnerable people have been advised to shield and they will have received a letter to state this at the beginning of May. These people are advised to continue to shield and stay at home. Staff should continue to work at home. This is likely to continue post June.
Those who are clinically vulnerable (distinct from extremely clinically vulnerable) are those over 70, who are pregnant or who have certain pre-existing conditions. They are now advised to take extra care in observing social distancing and where possible should continue to work from home. However, they are no longer required to shield. If it is not possible for these members of staff to work from home then they should be assigned the safest possible on-site role which will include staying at least two metres away from others where possible. Appropriate risk assessments should be undertaken.
- Can we ask employees to provide evidence that a person they are living with is extremely clinically vulnerable?
Yes, however in line with GDPR the letter should only be seen and not copied.
- Now that the Government has extended the JRS can schools furlough staff (albeit those funded through private sector income streams) over the summer?
We would recommend that all schools should be reviewing furlough arrangements on a regular basis most notably before the summer holiday.
Coronavirus (COVID-19) FAQs for reopening schools
The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.