Key coronavirus (COVID-19) employment issues for reopening schools

Summary

The Government has published guidance on the wider opening of schools in September. Its primary focus is clear – to ensure that all children are back in school in the autumn with education settings working at full capacity. The guidance issued by the DfE poses a number of challenges for schools. We have addressed some common issues below, however please refer to our full paper on some of the most relevant aspects of the guidance and our preliminary observations from an employment law and HR perspective, here.

Staff who are vulnerable

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.

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 consider in detail how staff who are clinically extremely vulnerable can work safely with younger children and appropriate advice obtained.
Changes to roles

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.

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.
Remote education

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

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.

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