The teaching unions in particular have reacted with some concern about the imposition of legislation in relation to something which was provided for in Government guidance in any event. In particular they are concerned about staff wellbeing and given the pressures placed on staff so far in 2020, there is some disquiet about the potential impact of further requirements on staff in relation to remote learning alongside in classroom responsibilities. The NEU has said that without a significant increase in the numbers of teachers, it does not believe that the Government’s expectations in relation to the provision of remote education can be met.
In our view, it would be reasonable and attainable within the remit of most teachers’ contracts of employment (and critically within the School Teachers Pay and Conditions Document, (the “STPCD”)) to require teachers to plan and deliver remote education within the working time allocated. The STPCD states that:
“A teacher employed full-time must be available to perform such duties at such times and such places as may be specified by the headteacher (or, where the teacher is not assigned to any one school, by the employer or the headteacher of any school in which the teacher may be required to work) for 1265 hours”.
The above provision is subject to the additional requirements in the STPCD in relation to planning and preparation time, breaks and critically the section below:
“Governing bodies and headteachers, in carrying out their duties, must have regard to the need for the headteacher and teachers at the school to be able to achieve a satisfactory balance between the time required to discharge their professional duties including, in particular……………. the time required to pursue their personal interests outside work”
Therefore, although it may be possible from a strict legal perspective to require teachers to carry out the additional duties required to offer an enhanced remote learning provision, this would need to be done within the remit of the current contractual framework, and in particular the STPCD where this is applicable. If schools are unable to achieve this, then a contractual change may be required. We would recommend that schools obtain specific legal advice on this if required.
Only time will tell whether schools have the resources internally to provide all of the elements the Government requires in the guidance whilst safeguarding contractual working time restrictions. However, it may be that schools can think strategically about the use of staff who are currently working from home, or have shown a desire to do so, in order to run this online platform, while leaving colleagues who are content and able to be in school, to focus on classroom-based learning. Clearly, this would need to be handled extremely carefully and schools should be mindful of not creating an expectation that certain categories of staff will be able to work from home, especially on a long-term basis.