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March 08, 2022

School specific operational guidance following removal of COVID-19 legal requirements

School specific operational guidance following removal of COVID-19 legal requirements

Date updated:

The Government has updated its Schools COVID-19 operational guidance for the education sector in light of the Prime Minister’s recent announcement. The move seems to be towards general, population wide guidance effectively in line with the previous legal measures, with an emphasis on personal responsibility.

The school guidance refers repeatedly to further guidance - COVID-19: people with COVID-19 and their contacts. The headline is: if you have any of the main symptoms of COVID-19 or a positive test result, the public health advice is to stay at home and avoid contact with other people but further elements of note are, for those with a positive test result, as follows:

  • You should not attend work and if unable to work from home should discuss options available with your employer.
  • If possible, notify close contacts so they can follow the appropriate guidance.

Wider points within the school operational guidance are:

  • In the event of an outbreak, a school may be advised by their local health team or director of public health to undertake testing for staff and students of secondary age and above for a period of time. 
  • Staff and pupils in SEND settings are advised to continue twice weekly testing. (The Government removed, as of 21 February 2022, the guidance for staff and students in most education and childcare settings to undertake twice weekly asymptomatic testing).
  • Those previously and variously designated as vulnerable, clinically extremely vulnerable (CEV), and high or higher-risk are not being advised to shield again. Although individual risk assessments are no longer required, employers are expected to discuss any concerns that people previously considered CEV may have. Where an employee’s medical team or treating clinician have advised on additional precautions to take this should continue to be followed. 
  • It is recommended that all school staff take up the offer of vaccination. 
  • A reminder of the need to comply with health and safety law and introduce proportionate control measures as appropriate. Risk assessments must be regularly reviewed and updated, acting as living documents.

There remains separate guidance for pregnant employees (here) with input from the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and the Faculty of Occupational Medicine. The guidance refers to:

  • Risk assessments required (as pre-Covid) for those who are pregnant and pregnant employees should not continue working if this is not supported by the risk assessment and they may be suspended with full pay.  
  • Wearing a face mask if the pregnant employee is in a crowded space with people they do not normally meet. There is no legal requirement to wear a face covering.
  • There is no default position of working from home if they can.
  • Vaccination of pregnant employees is encouraged and considered safe at any stage of gestation.
  • Pregnant employees who attend the workplace after 26 weeks gestation should consider taking LFDs on a regular basis.

At this stage, the main unions do not seem to have offered any comment on the removal of the various legislative measures. Based on their generally cautious approach over the last two years, it seems likely they will support a continuation of measures already in place.

The Government has emphasised the personal actions that individuals can take to reduce infection and transmission risk, which include:

  • Getting vaccinated; 
  • Letting fresh air in if meeting indoors, or meeting outside; 
  • Wearing a face covering in crowded and enclosed spaces, especially where you come into contact with people you do not usually meet, when rates of transmission are high; 
  • Trying to stay at home if you are unwell; 
  • Taking a test if you have COVID-19 symptoms, and staying at home and avoiding contact with other people if you test positive; and 
  • Washing your hands and following advice to ‘Catch it, Bin it, Kill it’.

These measures are not new but can be used to inform risk assessments and general communication measures to staff. 

Many schools, including Academy Trusts, follow the terms of the Burgundy and Green Books, both of which contain provisions for contact with infectious diseases as set out below. 

Burgundy Book

Paragraph 10 deals with contact with infectious diseases and has been widely applied to the circumstances arising during the current pandemic. As restrictions lift, paragraph 10.1 is likely to be viewed more closely as this confirms that where a teacher can show a reasonable probability that their absence from work was due to an infectious illness contracted in the course of their employment as a teacher the employee shall be entitled to full pay and this will not be reckoned against the teacher’s entitlement to sick leave. Paragraph 10.3 confirms that if a teacher resides in a house in which some other person is suffering from an infectious disease may be subject to an enforced absence if medical advice considers it inadvisable for the teacher to attend their place of work. Teachers are entitled to full pay in such circumstances and this shall not be reckoned against their entitlement to sick leave.

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.

There is an argument that now the Covid pandemic has effectively been downgraded to endemic status, akin to influenza, it no longer meets the definition of an infectious disease and therefore the collective agreement provisions of the Burgundy and Green Book would not be applicable, in the same way that they do not apply to staff who have the flu. This has not been tested and may face opposition from the unions, especially as the Government guidance still suggests that individuals take measures similar to pre-existing legal requirements.

At the start of the COVID pandemic there was a lot of focus upon the previously relatively unknown provisions of the Employment Rights Act 1996 which in short protect employees from detriment or dismissal as a result of refusing to attend or leaving a workplace or taking other measures to protect others where the employee believed they were in serious and imminent danger. The most commonly cited detriment being a reduction to or the withholding of pay. 

It may be that there is a resurgence in these claims in light of the removal of legislative provisions. However, the removal of the legislative provisions is arguably of itself evidence of a lack of serious and imminent danger. The UK’s vaccination programme would also arguably prevent an assertion of their being a serious and imminent danger. 

Generally, if schools do not shift away from their risk assessment guided approach and continue with their health and safety measures, it seems hard to see any section 44/100 allegations being successful.