Summary
- On 7th January 2021 the Government has published new guidance for schools – Restricting attendance during the national lockdown: schools
- Restricting attendance during the national lockdown: schools runs to 61 pages but follows the same format as Guidance for full opening: schools.
- Although the Guidance for full opening: schools has not yet been updated it is likely to be replaced with this new guidance.
- There is very little change to the School Workforce section – only a change of emphasis in the first section to encourage working from home:-
Under the national lockdown, the expectation is that everybody should work from home where possible. School leaders are best placed to determine the workforce that is required in school, taking into account the updated guidance for those staff who are clinically extremely vulnerable. The expectation is that those staff not attending school will work from home where possible.
-Replaces-
Most school-based roles are not ideally suited to home working and schools may expect most staff to return to work in settings. Some roles, such as some administrative roles, may be conducive to home working, and school leaders should consider what is feasible and appropriate.
- On Wednesday 6th January 2021 a joint-union advice email was sent to schools by UNISON, NASUWT and NEU which we answer below.
- The DfE have responded to the NEU and UNISON advice on S44 Employment Rights Act 1996 – more details below.
Latest Government Guidance
The Restricting attendance during the national lockdown: schools guidance follows the same format as Guidance for full opening: schools.
Critical workers – new section
Parents whose work is critical to the coronavirus (COVID-19) and EU transition response include those who work in health and social care and in other key sectors. Children with at least one parent or carer who is a critical worker can go to school if required. This includes parents who may be working from home.
Schools should speak to parents and carers to identify who needs to go to school. If it proves necessary, schools can ask for simple evidence that the parent in question is a critical worker, such as their work ID badge or pay slip. Parents and carers who are critical workers should keep their children at home if they can.
We know that every school will have a different number of children of critical workers who need to attend. It is important that on-site provision is provided for these pupils, and there is no limit to numbers of these pupils who may attend and schools should not limit attendance of these groups. This is because we are reducing overall social contact across areas and the country rather than individually by each institution.
In addition to the change of emphasis highlighted above there is a reworded section relating to CEV employees. The advice remains that CEV staff should remain at home and not come to work.
Staff who are clinically extremely vulnerable (new wording – same advice)
Following the reintroduction of shielding, clinically extremely vulnerable staff are advised that they should not attend the workplace. Clinically extremely vulnerable individuals are those identified through a letter from the NHS or a specialist doctor as in the group deemed clinically extremely vulnerable (CEV or shielding list). Staff who are identified as clinically extremely vulnerable should follow the published guidance.
Staff should talk to their employers about how they will be supported, including to work from home. Schools should continue to pay clinically extremely vulnerable staff on their usual terms.
Those living with someone who is clinically extremely vulnerable can still attend work where home-working is not possible.
Staff who are clinically vulnerable
No change
Staff who are pregnant
No change
Staff who may otherwise be at increased risk from coronavirus (COVID-19)
Slight change ‘Where it is not possible to work from home, these staff can attend school as long as the system of controls set out in this guidance are in place.’ The words ‘Where it is not possible to work from home’ have been added.
Trade Union joint advice
On Wednesday 6th January 2021 a joint-union advice email was sent by UNISON, NASUWT and NEU. The union advice is in bold and our advice follows.
“Staff levels must be kept to a minimum during the lockdown to reduce the risk of transmission” – This goes without saying and now schools are only open to vulnerable and key worker pupils, this will naturally reduce the requirement to have normal staff levels on site at any one time. The DfE released a new guidance document today called ‘Restricting attendance during the national lockdown: schools’. Within this guidance it states “Under the national lockdown, the expectation is that everybody should work from home where possible. School leaders are best placed to determine the workforce that is required in school, taking into account the updated guidance for those staff who are clinically extremely vulnerable. The expectation is that those staff not attending school will work from home where possible”.
“Staff who are delivering on-line learning should not be required to work in school, unless there are particular reason to do so, and in that event, they should be provided with a copy of the updated RA and may require an individual risk assessment.” – We agree with this point, if staff do not need to be on site because they are carrying out online learning from home, schools should avoid having members of staff on site when it can be avoided. But if there is a requirement for a member of staff to be on site then this should be backed up with a justifiable reason and risk assessment to support. An individual risk assessment is not required in every instance, but we recommend those that are clinically vulnerable or pregnant should have their own individual risk assessment.
“Whole school risk assessments must be reviewed and shared with staff and unions, these must recognise the HIGH RISK and acknowledging workload implications of face to face teaching alongside on-line learning.” – Whole school risk assessments should be updated but should produce a risk category specific to each school and its environment. Most of the time this will probably be ‘high risk’ but this blanket approach should not be taken. Each factor should be considered to produce a result specific to each school.
“All CEV members must be home based and should not be included on any rota.” – This is supported by Government advice. The Government advice is those that fall into the Clinically Extremely Vulnerable category should now be shielding which means they stay at home, avoid contact with others where possible and do not attend the workplace.
“All CV/pregnant members should be home based and should not be included on any rota.” – We do not agree with this statement. The Government guidance only states that Clinically Extremely Vulnerable individuals should resume shielding and therefore not attend the workplace. There is no mention of this action for Clinically vulnerable or pregnant employees. It does say that Clinically Vulnerable could be at higher risk of severe illness from coronavirus, but we recommend this should be dealt with on a case by case basis. Employers are advised to carry out an individual risk assessment for CV and pregnant employees then discuss this with them before a decision is made on whether they attend the workplace or not.
“Those with CEV family members should be allowed to work at home and should not be included on a rota.” – This does not follow Government advice. The new DfE document ‘Restricting attendance during the national lockdown: schools’ states “Those living with someone who is clinically extremely vulnerable can still attend work where home-working is not possible”. As per the above, home working is encouraged but where this is not possible an individual that lives with someone who is shielding can still attend the workplace.
“Staff may go into school to collect materials, but they must follow a RA and not mix with any other staff.” – A risk assessment should be followed at all times. Staff should not mix with others unnecessarily.
“2m Social Distancing at all times, (room capacity should be checked).” – This will fall within the risk assessment for each classroom. The Government guidance states “Ideally, adults should maintain 2 metre distance from each other, and from children. We know that this is not always possible, particularly when working with younger children, but if adults can do this when circumstances allow that will help. In particular, they should avoid close face to face contact and minimise time spent within 1 metre of anyone. Similarly, it will not be possible when working with many pupils who have complex needs or who need close contact care. These pupils’ educational and care support should be provided as normal.” The Government guidance on distancing is stricter when a pupil begins to show symptoms of Covid-19.
“Regular testing of staff and pupils should be facilitated.” – On 15th December 2020, the Government announced that every secondary school and college in England, as well as special schools and alternative provision, will have access to rapid coronavirus testing from January to help keep staff and students as safe as possible and in education. This means students will be eligible for daily testing for seven days if they are identified as a close contact of someone who has tested positive. Staff will also be eligible for daily testing if they are identified as a close contact. Primary schools will then be supported to roll out testing as quickly as possible over the spring term. In a Government press release on 30th December 2020, it explained that “All students and staff are encouraged to consent to testing. Testing for primary school staff will follow in the second half of January”. There was no mention of testing to be made available for primary school pupils.
Cook Lawyers advice
- In all cases, if you can make an adjustment to allow a member of staff to work from home, you should consider doing so.
- If that is not possible then they should still come to work unless CEV.
- You can encourage and reassure through the risk assessment process and have an individual risk assessment for them.
- If they still refuse to come to work you should try and agree that their absence would be unpaid leave.
- If they won’t agree you can refuse to pay.
- Ultimately, it could be a disciplinary as a result of a failure to follow a reasonable management instruction (i.e. by refusing to come to work) but I wouldn’t recommend that.
- Always better to agree something if you can.
- The risk if you don’t agree something and say unpaid leave then the individual is likely to go off sick. It is really a question of being reasonable, setting the right example for others and being consistent. If the individual has a genuine reason for not wanting to come to work that obviously helps. However, the needs of the school are the deciding factor. As we stand at the moment only CEV staff should not attend work and even then that could be subject to their individual risk assessment. Some schools have CEV staff that are desperate to come to work for their own mental wellbeing and the school are content to allow this depending on the individual circumstances e.g. in one case it was outside schools hours, so no contact with others. Risk assessment showed the risk was minimal.
DfE response to NEU and UNISON regarding S44 Employment Rights Act 1996
On 7th January 2021 at 9.46am, the Department for Education released information to schools that contain members of NEU and UNISON.
It firstly explains that more communications about the operation of schools during lockdown will be coming from the DfE shortly.
The information then goes on to address the advice received from NEU and UNISON that they believed schools were not safe and their members should not be returning to the workplace. The Government understands this advice has now been withdrawn and the NEU website confirms this position. The Government did not agree with this advice because section 44 of the Employment Rights Act, on which they relied for this advice, is specific to each individual employee and cannot be applied in a blanket way to all school staff in the country.
The Restricting attendance during the national lockdown: schools states:
“We understand that your staff may have concerns about their safety when coming into school, and the appropriate process is for those members of staff to resolve these with you and your leadership team. You will of course be able to discuss and consult as appropriate with any trade union representatives, as well as seeking advice from your Regional Schools Commissioner’s office and local public health teams. If you are receiving letters from members of staff stating that they do not intend to attend the workplace as they do not consider it to be safe, you should engage with them, noting that the NEU and UNISON advice has been withdrawn and setting out, as we have above, the reasons that schools can and should be open. You will also want to consider their specific circumstances and concerns, to which you can then respond. If required, we recommend you seek your own legal advice.
We know this can be a difficult time to be running a school, and that the virus rates will be causing concern. We share your commitment to ensuring children get the best education, and that the process above will take into account all health and educational considerations in looking at this issue”.
General Guidance
The general coronavirus guidance starts here:-
https://www.gov.uk/coronavirus
