Happy New Year!
- On 3 January the PM told Andrew Marr that was “no doubt in my mind that schools are safe” and that the risk to children was “very, very low” and the benefit of education was “so huge”, but did not rule out further closures.
- The NEU have advised their members not to go to work based on health and safety concerns:-
- ‘The NEU’s advice to members is that it is, in our view, unsafe for you to attend the workplace at present. We have written to all employers and all head teachers and principals giving this same advice and asking them to make preparations for a move to remote learning instead.’
- ‘This advice applies to all primary and secondary schools, special schools and SEND settings, colleges and early years settings.’ https://neu.org.uk/january-advice
- The NEU have provided the following letter for staff to submit. https://actionnetwork.org/forms/letter-to-head/
Sections 100 (dismissal) and 44 (detriment) of the Employment Rights Act 1996
The NEU advice is based on Sections 100 and 44 of the Employment Rights Act 1996.
Section 100 of the ERA 1996 protects employees by providing that dismissal shall be automatically unfair where the reason for the dismissal is one of the following reasons:
- Dismissal for leaving or staying away from dangerous workplace (section 100(1)(d)). Where an employee reasonably believes that they are in serious and imminent danger and they could not be reasonably expected to avert it, they are protected from dismissal if they leave, propose to leave, or refuse to return to the workplace while the danger persists.
- Dismissal for taking action to prevent danger (section 100(1)(e)). Employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger, are protected from dismissal on that basis.
Action short of dismissal on the grounds set out above could amount to a detriment which is unlawful under Section 44 of the Employment Rights Act 1996.
Latest Government Guidance
The Guidance for full opening: schools was last updated on 30 December 2020 in the following areas:-
- staff who are pregnant
- use of face coverings
- clinically extremely vulnerable pupils
- clinically extremely vulnerable staff
- wraparound provision and extra-curricular activity
- physical activity in schools
Staff who are pregnant
While the guidance remains basically the same in that ‘Pregnant women are in the ‘clinically vulnerable’ category and are generally advised to follow the advice, which applies to all staff in schools’, there are two new sections:-
Employers should be aware that pregnant women from 28 weeks’ gestation, or with underlying health conditions at any gestation, may be at greater risk of severe illness from coronavirus (COVID-19). This is because, although pregnant women of any gestation are at no more risk of contracting the virus than any other non-pregnant person who is in similar health, for those women who are 28 weeks pregnant and beyond there is an increased risk of becoming severely ill, and of pre-term birth, should they contract coronavirus (COVID-19).
This is also the case for pregnant women with underlying health conditions that place them at greater risk of severe illness from coronavirus (COVID-19).
Use of face coverings
Local restriction tiers: 2, 3 or 4
When an area moves to local restriction tiers 2, 3 or 4, in settings where pupils in year 7 and above are educated, face coverings should be worn by adults and pupils when moving around the premises, outside of classrooms, such as in corridors and communal areas where social distancing cannot easily be maintained. This does not apply to younger children in primary schools and in early years settings.
In the event of an area moving into local restriction tiers 2, 3 or 4, schools will need to communicate quickly and clearly to staff, parents and pupils that the new arrangements require the use of face coverings in certain circumstances.26 November 2020. The first part of the guidance states that ‘There are no substantive changes here for schools.’
Staff who are clinically extremely vulnerable
Advice for those identified through a letter from the NHS or a specialist doctor as in the group deemed clinically extremely vulnerable (CEV or shielding list) was published on 13 October. The guidance provides advice on what additional measures individuals in this group can take tailored to each local restriction tier.
In local restriction tier 4 areas, individuals who are clinically extremely vulnerable are advised to work from home and where this is not possible, they should not go into work. Individuals in this group will have been identified through a letter from the NHS or from their GP and may have been advised to shield in the past, most recently in November 2020.
Staff should talk to their employers about how they will be supported, including to work from home where possible. Schools should continue to pay clinically extremely vulnerable staff on their usual terms.
All other staff in local restriction tier 4 can continue to attend work, including those living in a household with someone who is clinically extremely vulnerable.
All staff can continue to attend school in local restriction tiers 1, 2 and 3.
Under local restriction tier 3, staff and employers may wish to discuss flexibilities that support clinically extremely vulnerable staff, such as staggered start times to reduce travel during rush hour.
If an employee raises a concern about coming to work then the best way to deal with it is to reassure through the risk assessment process. The difficulty is that there has not been anything from the Government that helps specifically.
So, persuasion through support and reassurance is the key. Our advice at the moment is that there is not enough evidence available to show that an employee’s refusal to attend school could be unreasonable.
The individual employee will rely on the new variant of the virus, the delayed start for secondary schools and the fact that all primary schools in London are closing. It is difficult to argue against this, particularly as it has happened since the Guidance for full opening: schools was last updated on 30th December 2020.
The press release on 1st January 2021 – School contingency plans to be implemented as cases rise stated:-
Evidence shows the new strain of COVID-19 is increasing in the South West, Midlands and parts of the North West. The majority of the cases identified in London, the South East and the East of England are of the new variant. Infection rates have increased faster than expected in these areas where the new strain has been circulating and stronger measures are required to get the virus under control.
Schools need more specific guidance in order to show that there is not a serious and imminent danger. Unfortunately, at the time of writing that specific guidance is not available.