We have seen copies of two letters schools have received which purport to warn of legal action against schools which are facilitating lateral flow device testing and/or which are requiring or recommending that face-coverings be worn. One letter (which is a template downloaded from the website Laworfiction.com) is in effect a threat of judicial review action, and the second letter, from a group called Lawyers for Liberty, states that the group holds a list of ‘concerned individuals’ who either work at or attend the school and warns of claims for personal injury should damage be caused to those individuals through the implementing of testing or the wearing of face-coverings. What both letters have in common is the argument that following Government guidance is unlawful and/or no defence.
The issue has gained wider focus in particular because of the extension of government guidance extending the potential wearing of face coverings in the classroom if social distancing cannot be easily maintained. In addition, there was Nick Gibb’s widely publicised remarks about face coverings not being compulsory in schools.
This is correct in so far as schools are not prescribed as ‘relevant places’ where the wearing of face coverings is required by law, however that does not prevent a school from implementing a policy that requires or encourages face coverings to be worn (unless a person is exempt).
The starting point for your own policy will be underpinned by your risk assessment and identifying what is a reasonable and proportionate measure to mitigate any risks identified. What schools will have to consider is whether a rigid application of a face covering policy that extends the requirement to wear them in classrooms as well as communal areas is likely to lead to a volume of complaints which will be a drain on time and/or resources. The probability is that the vast majority of pupils will happily wear a face covering in any case; whether they are worn correctly is another matter of course. Finally, if your policy is to require pupils to wear face coverings, then you are able to apply sanctions if such a policy is disregarded by a pupil who is not otherwise exempt. We would advise that sanctions are implemented on a very gradual scale, in line with your published behaviour policy.
We recommend that the letters are responded to and you may wish to seek legal advice on how to formulate your response. What we set out below is not formal legal advice, but our general view on each letter and the basic approach that schools might take.
- LaworFiction letter
The letter is a scattergun approach which, in essence, argues that schools are acting unlawfully in following government guidance. Although it does not follow the formal protocol requirements, it is in effect a letter before action warning of Judicial Review proceedings. Because it is a template letter, it is unlikely that the parent sending it has applied him/herself fully to the arguments raised, but it is important that it is responded to. The letter is usually copied to the Local Authority, and if so it would be prudent to liaise with the LA to see if they are responding and if it would be willing to share its response with you.
There are seven principal points raised in the letter:
- The duty to secure efficient education
- General duty under the Health & Safety at Work Act 1974
- Management of Health and Safety at Work Regulations 1999
- SARS-CoV-2 and ‘covid-secure’ risk assessments
- The requirement for and meaning of proportionalit
- Harm to mental health and responsibility to redress promoted fear
- Children with Disability
And the letter concludes by setting out specific actions that the school is required to take.
The focus of the response should be centred on the fact that the school is paying due regard to government guidance, which is a rational and proportionate approach to take. Its policies formulated on the wearing of face coverings and administering of tests, are done so having been informed by such guidance and to do otherwise would be irresponsible. The risk assessments undertaken by the school and the measures adopted are done so with the single intention of making the premises as safe as reasonably possible for the school community, and to mitigate against identified risks.
- Steps that the letter requires the school to take
- “Desist from any ... policy to encourage or require children in the School to wear face-covering...”
Provided that the policy adopted is supported by your risk assessment and is in accordance with Government guidance then a school is entitled to pursue that policy. This request may be declined on that basis.
- “Take active steps to redress the state of fear ...”
Focus on the communications that the school has had with parents as to the steps taken to make the school safe, and that any steps taken are only on the basis of government guidance. That students can talk to their pastoral lead / tutor / head of year etc. and that we are aware of the unsettling times that the pandemic has created.
- “Confirm the school will desist from introducing any policy to encourage / require children to wear face coverings”
Assuming there is a policy in place and follows the government guidance, that the school will not be amending or removing the policy whilst government guidance remains as it is.
- Provide a copy of the school’s risk assessments
If these are published on the website, then in the first instance refer the writer to the webpage. Otherwise they may be disclosed.
- Steps to inform and train staff
Focus on general safeguarding training and meeting the needs of students with medical conditions, and general increased awareness of the impact on mental health that the pandemic has had.
- Take notice of objection to encouraging or requiring student to wear a face covering
Acknowledge the objection. If your policy is to require the wearing of face coverings you will need to reiterate that is the expectation for any pupil who is not exempt. If the policy is to encourage the wearing of face coverings, then acknowledge the objection but state that the policy will continue to be applied.
- Lawyers for Liberty letter
This letter is a warning of a potential claim for personal injury written on behalf of “Concerned Individuals’ if a policy regarding the wearing of face coverings and/or testing is pursued, and that on account of that policy a Concerned Individual at the school suffers injury. Because of the threat of a personal injury claim it would be sensible, as the letter itself states, to refer the letter to the school’s insurer and seek direction if any specific steps should be taken in light of it. For those schools and trusts with the RPA it is unlikely that any further steps will be required but we advise it is brought to the RPA’s (or the relevant insurer’s) attention in any event.
Subject to the insurer’s direction, the response to the letter should focus on the rational approach of the school/trust in following government guidance. The response should emphasise that testing is by consent only and that no person will be coerced, manipulated or required to take the test. As regards the school/trust policy wearing face-coverings, the response should, again, refer to the following of government guidance.
The letter urges specific action to be taken and for such action to be confirmed to the author.
- The first action is in respect of both face coverings and testing. Assuming the policies are in line with the published guidance, then it is likely that the school/trust response will advise that neither policy will be amended; that testing will only take place with consent and that face coverings will be required (or recommended – whichever your policy is) unless exempt.
- If no change to the policies are made then there will be no change to communicate.
- The letter should be referred to the school/trust insurer.