In addition to these specific FAQs we've also put together a general document applicable to all organisations:
- Can we still continue or hold restructure/redundancy consultations with staff during school closure?
The unions have stated that processes such as consultations should not continue as they cannot be regarded as meaningful from a legal perspective. Any consultations that have already been completed would not be affected as meaningful consultation would have already taken place and there is no reason that the process should not be completed.
While schools are closed the employees are still at work and therefore normal processes would apply. If you are starting consultations on potential restructure/redundancies you would need to attempt to hold formal consultation meetings in line with government guidelines. Schools are still open for staff to come in and meetings could be held as long as social distancing is being observed. If this is not possible, or staff fall within the vulnerable group, we would advise that this is done via video conferencing or telephone/conference call. Unions should be invited to these meetings as normal.
The same would apply for 1-1 meetings as part of the process and any subsequent appeals. It is likely that you would receive challenge on this and therefore we would advise that you seek further legal advice on the specific circumstances.
- Can we still continue or deal with misconduct/gross misconduct under the disciplinary procedure during school closure?
Similarly, the unions have suggested that any disciplinary process should stop but again there is no reason why any investigations, hearings and appeals cannot be held in the normal way as long as you are adhering to the guidance on social distancing and taking advantage of technology such as video/telephone conferencing.
Any video or telephone conferencing should only happen with the individual concerned and they should be informed that they take any such meeting in private. If there is any challenge to this then the employee/union rep should be asked to provide reasons why the use of this technology is not permissible and we can advise accordingly.
- Are we able to interview applicants online?
Interviews can still be conducted online. Pre-employment information should be provided electronically and should be verified similarly for DBS checks (as stated above).
We would advise complying with government guidance on social distancing and making use of video/telephone conferencing and ensure that interviews are conducted by the panel and applicant in private. Discussion can then be held separately by the panel and interview forms completed accordingly.
It is important that applicants are informed if there is a delay in the process when setting up these interviews as you would normally do.
- What happens with holiday during school holidays?
Schools can offer TOIL to employees who are on the rota during any time where the school is open and it would otherwise be closed for the holidays, rather than look to vary the contract of employment.
Union advice to their staff is that staff holidays should be operated on a rota basis so that staff get the same period off either before, or after the period when the school would normally be closed. Having weeks rather than days off will offer significant benefits in protecting staff health through minimising the extent of contact with different colleagues.
Rota organisers could ask staff to agree/sign the rota so there are no issues over what was agreed.
- As a school are we able to claim from the government’s Job Retention Scheme (JRS)?
The government guidance states that the scheme is not envisioned to be used by many public sector organisations, as the majority of public sector employees are continuing to provide essential public services or contribute to the response to the coronavirus outbreak. Where employers receive public funding for staff costs, and that funding is continuing, they expect employers to use that money to continue to pay staff in the usual fashion – and correspondingly not furlough them. This also applies to non-public sector employers who receive public funding for staff costs. Organisations who are receiving public funding specifically to provide services necessary to respond to COVID-19 are not expected to furlough staff.
In a small number of cases, for example where organisations are not primarily funded by the government and whose staff cannot be redeployed to assist with the coronavirus response, the scheme may be appropriate for some staff.
Further guidance is available here.
The guidance says:
“We do not, in general, expect schools to furlough staff. However, we understand that, in some instances, schools may have a separate private income stream (for example, catering, sports facilities lettings, or boarding provision funded by parents in state boarding schools). Where this income has either stopped or been reduced and there are staff that are typically paid from those private income streams, it may be appropriate to furlough staff. Schools should first seek to make the necessary savings from their existing budget or consider options to redeploy these staff before furloughing them. Only after all other potential options have been fully considered should schools furlough those members of staff and seek support through the Coronavirus Job Retention Scheme.”
Various conditions need to be met before schools are able to use the JRS. However, this guidance provides further clarity under what circumstances it can be used. In particular the guidance states that “Schools are not expected to consider each stream of private income separately so a school should consider its total income from private sources, as a proportion of its overall income, and the pay of all the staff it proposes to furlough, as a proportion of its total pay bill.” However, the guidance also suggests that the use of the scheme by public sector organisations will be monitored carefully to ensure that there is no double recovery.
- Are agency staff able to be put on furlough?
The JRS guidance is that recruitment agencies (with agency workers paid through PAYE) are eligible for the furlough scheme. Therefore if there is no work the agency, as the employer, will be able to ‘furlough’ the agency worker and claim accordingly as outlined in the JRS guidance. However, publicly funded organisations should continue to pay suppliers, including agencies, where appropriate. Further information can be found here.
- What do I need to do if I want to use the JRS?
If you wanted to take advantage of the scheme you would need to designate employees as those being put on furlough leave. In order to do so you will need to:
- Decide which employees to designate as furloughed employees while bearing in mind discriminatory criteria for selection. Notify those employees and consider who you will need to consult with, e.g. trade unions.
- Agree the change with the employees. Contracts in schools are unlikely to include clauses to allow employers to reduce pay or not provide them with work with express agreement. However, given the stark alternatives that may be on offer, we would anticipate that many employees will agree to the change.
- Confirm the employees' new status, along with any further confirmation as to arrangements. It is important that the employees do not carry out work while they are furloughed. It is worth considering setting a period for review.
- Liaise with HMRC about the employees that have been furloughed and their earnings through the new online portal which will be available from 20 April with first payments being made to businesses on 30 April.
- Has anything changed regarding recruitment and checks?
Yes. To ensure that the necessary DBS checks can still be carried out, the DBS standard and enhanced ID checking guidance has changed for a temporary period.
The change will enable:
- ID documents to be viewed over video link
- scanned images to be used in advance of the DBS check being submitted
- The applicant will be required to present the original versions of these documents when they first attend their employment or volunteering role. The change came into effect from 19 March 2020.
- What can I ask staff to do while in school?
This will entirely depend on the contents of the contract of employment. For support staff in particular this is likely to encompass as wide a range of duties as the contract provides. For teachers who are subject to the School Teachers Pay and Conditions Document, schools can ask teachers to carry out a wide range of duties, including (but not limited to), planning and teaching lessons to the classes they are assigned to teach, and assessing, monitoring, recording and reporting on the learning needs, progress and achievements of assigned pupils. It is worth noting that the NEU and NASUWT have both taken a different view on this and appear to be stating that teachers may reasonably be expected to organise and make available learning resources for children who would otherwise normally attend school, but they should not be expected to plan lessons to be delivered during the period of COVID-19 school closure nor undertake marking of work of children affected by COVID-19 school closure. Our current view is that this assertion has no legal or contractual basis. It is worth noting that other unions within the sector are not taking this approach.
- Are employers liable for discrimination and harassment by employees?
Employers should be particularly alert to any discriminatory treatment of employees from regions of the world with a high incidence of the virus. Employers could be vicariously liable for discrimination or harassment and so should take reasonable steps to prevent this.