The Government has published guidance on the wider opening of schools in September. It’s primary focus is clear – to ensure that all children are back in school in the autumn with education settings working at full capacity. The Government states that as the prevalence of coronavirus (COVID-19) has decreased and the risk to children themselves of becoming severely ill is very low, the risks of returning are far outweighed by the benefits of a full school re-opening.
The Government acknowledges in the guidance that “whilst it is not possible to ensure a totally risk-free environment, the Office of National Statistics analysis on risk suggest that staff in educational settings tend not to be at any greater risk from the disease than many other occupations. There is no evidence that children transmit the disease any more than adults.”
The re-opening of schools in the autumn and the guidance issued by the DfE poses a number of challenges for schools. We are setting out below some of the most relevant aspects of the guidance and our preliminary observations from an employment law and HR perspective.
- “The measures set out in this guidance provide a framework for school leaders to put in place proportionate protective measures for children and staff”
We understand that the Government consulted with relevant trade unions in relation to this guidance. It is clear to us that the language used in parts has been influenced by the trade unions. In particular we note that the guidance suggests that measures should be proportionate. We wonder whether at local level and on a school by school basis, unions and employees themselves will seek to explore what proportionality means in this context.
- “We want all pupils and staff to be back in schools, and believe the conditions are right for this, but some people will understandably have worries that should be heard and addressed.”
We have seen a number of cases of staff refusing to return to school in some cases because of anxieties around contracting COVID-19 in the workplace. We have seen an increased frustration amongst schools who have engaged extensively with employees to seek to address concerns to no avail. The Government’s guidance does not give schools any clear route to a resolution of those difficulties and we would urge schools to obtain HR and/or legal advice on their options in this regard.
- “Schools should not put in place rotas”
It is clear that the Government expects all staff to return and is removing the option of rota systems. This could be a challenge for some schools, especially those with small teaching numbers.
- “The overarching principle to apply is reducing the number of contacts between children and staff….We recognise that younger children will not be able to maintain social distancing, and it is acceptable for them not to distance within their group.
Although we appreciate that the Government’s intention is to offer practical guidance to facilitate opening, the challenge remains in relation to staff/pupil interaction especially at primary level. In particular we note that later in the guidance the Government states that “Individuals who were considered to be clinically extremely vulnerable and received a letter advising them to shield are now advised that they can to work from 1 August as long as they maintain social distancing.” Schools should therefore consider in detail how staff who are clinically extremely vulnerable can work safely with younger children and appropriate advice obtained.
- “Schools should also plan how shared staff spaces are set up and used to help staff to distance from each other. Use of staff rooms should be minimised, although staff must still have a break of a reasonable length during the day”
Schools should consider this as part of their risk assessment. We are concerned about the practicalities of staff being provided with a break, in particular considering the requirement for schools to run a more enhanced remote education provision (as discussed below). Schools should consider in detail the provisions relating to working time in the School Teachers Pay and Conditions Document*, as well as individual contracts.
- “Staggered start and finish times should not reduce the amount of overall teaching time. A staggered start may, for example, include condensing / staggering free periods or break time but retaining the same amount of teaching time, or keeping the length of the day the same but starting and finishing later to avoid rush hour.”
The impact of the above could involve staff working increased hours. Schools should be mindful of the provision of individual contracts of employment and agree temporary variations where possible.
- “Where a pupil is unable to attend school because they are complying with clinical and/or public health advice, we expect schools to be able to immediately offer them access to remote education. Schools should monitor engagement with this activity”
Schools will need to consider in detail how they are going to deliver this alongside full time teaching on site. Our view is that this is going to be one of the most challenging aspects of the guidance, as many schools are currently unable to offer significant remote learning, given the increasing numbers of children in school. We consider that this requirement has the potential to impact significantly on staff workload, and schools should consider this in advance of September and keep the position under review as the new term commences.
- “It remains the case that wider government policy advises those who can work from home to do so. We recognise this will not be applicable to most school staff, but where a role may be conducive to home working for example, some administrative roles, school leaders should consider what is feasible and appropriate”
Schools should carry out an early analysis of their staff to establish whether there are those who may still work at home. Care should be taken in relation to ensuring consistency, clear criteria for home working and we would strongly advise against exceptions being made, as employee relations issues could arise. We anticipate that there will be very few roles which could be done from home post September and in our view this would be in line with the Government’s guidance. It is worth emphasising that the guidance states that “where schools apply the full measures in this guidance the risks to all staff will be mitigated significantly, including those who are extremely clinically vulnerable and clinically vulnerable. We expect this will allow most staff to return to the workplace”. Schools should be mindful of the fact that some staff will still not want to return and they should establish in advance how they are going to deal with these arguments.
- Regarding those who are clinically extremely vulnerable… “School leaders should be flexible in how those members of staff are deployed to enable them to work remotely where possible or in roles in school where it is possible to maintain social distancing.”
Schools should carry out early analysis of those falling in this group and obtain evidence from staff as appropriate. Many schools to date have been relying on trust and we agree that this approach is likely to assist in long term employee engagement. However, we are aware that some employees have been using the “shielding route” as a reason not to attend work, irrespective of their medical condition. We would urge schools to adopt a consistent approach to evidence gathering and obtain advice if this is an issue.
It is also worth remembering that the guidance states that people who live with those who are clinically extremely vulnerable or clinically vulnerable can attend the workplace.
- “Some people with particular characteristics may be at comparatively increased risk from coronavirus (COVID-19), as set out in the COVID-19: review of disparities in risks and outcomes report. The reasons are complex and there is ongoing research to understand and translate these findings for individuals in the future. If people with significant risk factors are concerned, we recommend schools discuss their concerns and explain the measures the school is putting in place to reduce risks. School leaders should try as far as practically possible to accommodate additional measures where appropriate”
The guidance does not make specific reference to BAME staff. However, in our view, the implication of the above, is that schools should consider this and other identified factors such as age and obesity as in the context of their risk assessments. That said, it is worthwhile considering that the advice suggests that “significant” risk factors should be addressed. It will be a matter for individual schools (or trusts) to consider what amounts to significant. We wonder whether this means that there should be a number of risk factors present, e.g. BAME employee, over 60?
- “Schools may need to alter the way in which they deploy their staff, and use existing staff more flexibly to welcome back all pupils at the start of the autumn term. Managers should discuss and agree any changes to staff roles with individuals.”
We would support the position that schools should discuss changes to roles. However, they should also consider whether the change would involve a contractual change, which would mean that the employer would need to obtain the employee’s specific consent.
Care needs to be taken in relation to selection of staff for additional duties and advice obtained.
- “It is important that planning builds in the need to avoid increases in unnecessary and unmanageable workload burdens. This could include a review of existing practices in this respect and schools may wish to draw on DfE’s workload reduction toolkit.”…
- “All employers have a duty of care to their employees, and this extends to their mental health. Schools already have mechanisms to support staff wellbeing and these will be particularly important, as some staff may be particularly anxious about returning to school”
We would signpost schools to these requirements and urge them to consider these aspects as part of their risk assessments.
- “Where support staff capacity is available, schools may consider using this to support catch-up provision or targeted interventions. Teaching assistants may also be deployed to lead groups or cover lessons, ………..Headteachers should be satisfied that the person has the appropriate skills, expertise and experience to carry out the work, and discuss and agree any proposed changes in role or responsibility with the member of staff.”
Again we would suggest that schools consider in detail the contractual provisions of staff they may want to use in these circumstances. Contractual variations may need to be agreed. Some schools have sought to make payments to teaching assistants in particular in relation to carrying out additional duties during this period. Although in principle we would not advise against this, we would strongly advise schools to obtain advice on this from their lawyer/HR professional. We would advise that discretionary payments are preferable to regular salary top ups.
- “We recommend that schools continue to recruit remotely over the summer period. Interviewing remotely may be a new experience for many schools…..Schools can continue to engage supply teachers and other supply staff during this period”
- “The government has set a requirement for people returning from some countries to quarantine for 14 days on their return. As would usually be the case, staff will need to be available to work in school from the start of the autumn term. We recommend that school leaders discuss leave arrangements with staff before the end of the summer term to inform planning for the autumn term. Where it is not possible to avoid a member of staff having to quarantine during term time, school leaders should consider if it is possible to temporarily amend working arrangements to enable them to work from home.
We understand that the Government is in the process of lifting the requirement to quarantine from certain countries and this will be effective in August. For countries still covered by the requirement, we are concerned that the guidance does not give schools the ability to withhold pay in circumstances where all other options have been exhausted. That said, this is a matter for individual employers to determine and the Government does not preclude this action. We would suggest that employees are spoken to in advance of the summer break and legal/HR advice is obtained should an issue arise. In our view these matters are better dealt with prior to the employee going on leave.
- “Remote education, where needed, is high quality and aligns as closely as possible with in-school provision: schools and other settings continue to build their capability to educate pupils remotely, where this is needed…….These should meet the same expectations as those for any pupils who cannot yet attend school at all due to coronavirus……., we expect schools to have the capacity to offer immediate remote education. Schools are expected to consider how to continue to improve the quality of their existing offer and have a strong contingency plan in place for remote education provision by the end of September. This planning will be particularly important to support a scenario in which the logistical challenges of remote provision are greatest, for example where large numbers of pupils are required to remain at home.”
We consider that the detailed requirements in relation to remote education provision are likely to be extremely challenging, and in particular for smaller schools. The requirements are likely to place further pressures on staff and schools should consider in detail whether and how they are likely to be able to deliver the requirements once school returns.
- “Leaders are encouraged to ensure that consultation on any changes to risk assessments that will be in place for the start of the autumn term commence with staff before the summer break, to ensure that those that are on term-time only contracts have adequate time to contribute.”
The clear expectation is that this planning will be undertaken prior to the summer break. This leaves most schools with around two weeks to carry out the detailed exercise as set out in the guidance, and engage actively with trade unions.
The unions’ approach
We understand that the Government consulted with the relevant trade unions in relation to the guidance and as such we would not expect the unions to object to the content in any material sense. As many schools are aware, the unions have sought to argue that many schools are currently unsafe and have suggested (and in some circumstances encouraged) employees to use the various sections from the Employment Rights Act to argue that they should not return to work, nor engage in the planning process for re-opening. The unions’ are currently reasonably consistent in their approach – in that they are content, and broadly supportive of reopening in September, but only on the basis that cases continue to fall, effective risk assessments are undertaken, and the track and trace system is in place and working well. We would urge schools to keep the unions’ position under review, and consider this in line with steps taken in relation to staff measures both as a whole and individually.
*independent schools are not required to follow this policy