Covid-19 – Latest Guidance for Schools – 1pm 4 January 2021 – second update today

John Cook

Further development

Key Points
The NASUWT guidance is in the form of FAQ’s:-

Some staff colleagues at my school have written to the headteacher to say that they will not be coming into the workplace on the advice of their unions. Is the NASUWT supporting this advice?

A direction to employees to attend work will be a reasonable management instruction and failure to comply will be a breach of contract by the employees involved with potential for the employer to take disciplinary action, implement a deduction in pay, or a refuse to pay them.

In circumstances where a union authorises or endorses or encourages its members not to attend or return to work in reliance on section 44 Employment Rights Act 1996 (ERA) (without a ballot mandate), would amount to the members being induced to breach their employment contract by the union.

In summary, a union’s conduct in supporting members who refuse to attend the workplace might be construed as, or at least alleged to be, a tortious act; inducement of breach of contract in furtherance of a trade dispute being the most obvious.

Further, members conduct in refusing to attend work, particularly where they are acting upon the union’s advice in concert with other members in the same workplace, might be construed as unofficial industrial action thus forfeiting the right to pay, or indeed, the right to claim unfair dismissal in the event of dismissal [see section 237 of Trade Union and Labour Relations (Consolidation) Act 1992].

The NASUWT understands fully the safety concerns that all members will have as a result of the continuing transmission of the coronavirus. However, it is important that all members follow the advice from the NASUWT including:

  • In the first instance, report to work as normal if you have been unable to speak with your line manager or Headteacher about the matters below.
  • Asking your headteacher to provide you with details of the school’s updated risk assessment. You should ask your headteachers to explain what additional measures the school has introduced to manage the new risks associated with the new variant of the coronavirus?
  • If you are in a vulnerable group, ask your headteacher to explain how they have taken account of your needs and circumstances as part of the school’s risk assessment?

Members should be aware that sending letters claiming serious and imminent danger without being aware of what mitigations have been put in place could place you in a very difficult situation at work and we would not ask you to take this risk without us being able to specifically assess the situation facing you.

Where staffing levels in schools are insufficient or could affect the safety of provision, members should raise their concerns with their headteacher and notify the NASUWT immediately.

Can I be disciplined by my employer if I refuse to attend the workplace?
An employer has a statutory obligation under the Health and Safety Regulations to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees. This core duty extends to ensure that the provision of plant and systems of work are safe and without risks to health, and that the provision of such information, instruction, training and supervision as is necessary to ensure the health and safety at work of employees. The duty provides protection for both the physical and mental health of employees.

An employer also has an implied duty to take reasonable steps to provide a safe workplace and a safe system of work. The employer must also consider whether vulnerable employee has a protected characteristic, such as disability or pregnancy, which would lead to additional duties.

More importantly, employees have the right not to be subjected to a detriment by their employer should they undertake certain action in connection with securing their own health and safety, or the health and safety of others. These rights are enshrined in legislation (Section 44 Employment Right Act 1996). In legislation, an employee is protected against detriment when, ‘in circumstances of danger which [they] reasonably believed to be serious and imminent’ they left, proposed to leave, or refused to return to their workplace. An employee is also protected when, in the same circumstances, they take appropriate steps to protect themselves or other persons from the danger.

In the current circumstances of Covid-19, and with the particular uncertainty prevailing as to the transmission of Covid-19 in schools and colleges, it is recognised that employees would be in serious and imminent danger where appropriate arrangements have not been put in place within a workplace to prevent the transmission of the virus. It is, therefore, extremely important that members discuss with their employer the arrangements in place to ensure their health and safety at work and that these arrangements are kept under regular review by the employer, in consultation with staff and recognised unions.

The position of NASUWT not to support members who refuse to come to work is in stark contrast to the advice NEU is providing to their members.

The NASUWT approach is far more sensible, encouraging employees to speak to their employer and seek reassurances.

We understand NAHT and ASCL are lobbying the Government to move all schools to remote education for at least the first two weeks of term.

Hopefully, further Government guidance will be provided soon.

John Cook – Solicitor

John Cook

I am a qualified Solicitor with over 30 years’ experience running a business, managing a team, appearing in the Employment Tribunal and advising on almost every conceivable employment law and HR issue. Clients appreciate my down to earth and straight forward approach that allows them to achieve results and manage their organisation more effectively. I take the worry out of employment law and HR issues with a proactive and robust approach.