The most recent government advice (which can be found here) is that anyone who develops a persistent cough or fever should self-isolate for a period of fourteen days, along with their household. In addition the government has confirmed that for those who are over 70, have an underlying health condition or are pregnant, social distancing measures (as set out in the government guidance in more detail) should be followed. In relation to school staff, the main questions arising currently are:
- Do schools need to pay staff who are self-isolating or social distancing?
- Can work be given to the member of staff while they are away from school?
In relation to self-isolation and social distancing, much depends on whether the employees are subject to the Burgundy Book (BB) and Green Book (GB) and whether they are willing and able to work from home. We have extracted sections from the relevant documents at the end of this section. If the employee is subject to the BB and is staying at home due to the social distancing or self-isolation advice and no one within their family is ill, on a strict reading of the BB unless there is an incident of COVID-19 within school, these provisions would not apply and in principle there would be no requirement to pay if the employee was unable and unwilling to work. A school could require the employee to work from home if possible and would be obliged to pay in these circumstances.
The GB provisions are even more restrictive and state that an employee will only be paid if their absence is as a consequence of them being in contact with the infectious illness. Again, if homeworking is possible, and the employee is willing to work they should be paid.
Schools will appreciate that the above position is contrary to the unions’ collective view which appears to be that all staff should be paid if they are away from work due to any COVID-19 issues. If schools adopted the withdrawal of pay approach, they are likely to receive significant resistance from employees and unions. Our understanding is that many schools are intending to pay full in accordance with the unions’ approach. It is worth remembering that the government’s announcement on 16 March was advice and not a compulsory requirement.
There are numerous considerations in relation to pregnant employees who are within 4 weeks of their due date – we can advise fully on this as required. If the individual is not attending work, not sick and is not subject to the BB or GB, the provisions of the contract of employment (and any policies) will apply. If the employee is unwilling or unable to work, this may mean withdrawing pay.
Where a member of staff does contract coronavirus, their absence should be recorded as sickness. However, their absence for this reason should not be counted as part of the trigger for sickness monitoring or review meetings. Staff should be paid in accordance with the sick pay scheme and the relevant sections of the BB and GB as extracted below.
- Green Book
"An employee who is prevented from attending work because of contact with infectious disease shall be entitled to receive normal pay. The period of absence on this account shall not be reckoned against the employee’s entitlements under this scheme."
- Burgundy Book
"When the approved medical practitioner attests that there is evidence to show a reasonable probability that an absence was due to an infectious or contagious illness contracted directly in the course of the teacher’s employment full pay shall be allowed for such period of absence as may be authorised by the approved medical practitioner as being due to the illness, and such absence shall not be reckoned against the teacher’s entitlement to sick leave under paragraph 2 above, though such absences are reckonable for entitlement to Statutory Sick Pay.
"A teacher residing in a house in which some other person is suffering from an infectious disease shall at once notify the employer and the teacher shall, if required, take such precautions as may be prescribed, provided that if in the opinion of the approved medical practitioner it is considered inadvisable, notwithstanding such precautions, for such teacher to attend duty, full pay shall be allowed during any enforced absence from duty, such pay being sick pay for the purpose of paragraphs 3 to 7.5 above. This provision will also apply where, in the opinion of an approved medical practitioner, it is inadvisable for a teacher to attend duty for precautionary reasons due to infectious disease in the workplace. The period of the absence under this paragraph shall not be reckoned against the teacher’s entitlement to sick leave under paragraph 2 above, though such absences are reckonable for entitlements to Statutory Sick Pay."