From education to employment

Seven things for schools and colleges to consider before 8 March 2021

Helen Dyke

@Helen_IMHRplus @IrwinMitchell shares seven things that schools and colleges should consider before pupils return en-mass on the 8th March 2021 

On Monday 22 February, the Prime Minister set out the four steps his government plans to take to lift Covid restrictions in England

Despite the success of the vaccination programme, Mr Johnson made it clear that coronavirus was still a ‘substantial threat’ and that easing lockdown restrictions will increase the numbers of cases, hospitalisations and deaths. In other words, unlike other countries aiming for ‘zero Covid’, our approach is to live with it and accept that there will be surges in infection rates within some communities despite the success of the vaccination programme. 

The detail is contained in a 68 page document: Covid-19 response – Spring 2021. The operational guidance for schools and colleges have both been updated.

Restrictions will start to be eased across the whole of England at the same time. From Monday 8 March all schools and colleges should open to all students and provide face to face learning. That date is not optional – although it appears that schools and colleges can operate a phased return in the first week. After that, all students must attend unless they are shielding, vulnerable or are self-isolating. 

Unions have already voiced their objections and have accused the government of failing to ‘learn the lessons of previous mistakes’. 

The government appears to accept that releasing 10 million pupils and staff back into the community will increase the numbers of infections. For example, the Centre for Mathematical Modelling of Infectious diseases has indicated that reopening all schools could increase R from an assumed baseline of 0.8 to between 1.0 and 1.5.

What are likely to be the key issues for school and college leaders?

  1. Staff refusing to return because of concerns about catching and/or passing on the virus to vulnerable members of their own families

We understand that a number of unions are discussing whether to issue a joint national statement about whether it is safe for staff to return to work on 8 March (something they did on 4 January this year).  

Under sections 44 and 100 of the Employment Rights Act 1996, employees can bring employment claims if they are subjected to a detriment (such as being suspended or having their pay deducted) or are dismissed for exercising their right to leave their workplace. This protection gives them the right to refuse to attend work; to insist on certain safety measures or take other positive steps to protect themselves and others from danger.

The employee must have a ‘reasonable belief’ that their workplace poses a ‘serious and imminent threat’ to them, or to others – including members of the public and their own families. It’s possible that travelling to and from work – particularly on public transport may also count.

An employee’s right to refuse to work or take other appropriate steps under section 44 of the ERA depends on the reasonableness of their own view about the danger, based on what they know and have been told – particularly via official advice. The government has acknowledged that Covid remains as ‘substantial threat’. Whilst figures are going down, earlier this week almost 8,500 people tested positive for Covid and 548 died within 28 days of receiving a positive Covid test. 

Our advice about how to deal with individual objections is available here.

  1. People who are shielding or who live with a clinically extremely vulnerable person

The government hasn’t yet updated its guidance on shielding. However, formal shielding measures only apply across the whole of England during the period of national lockdown and the Prime Minister said that the clinically extremely vulnerable people won’t have to shield from the end of March. Whether that means the 29th or 31st hasn’t yet been clarified.

The education specific guidance is slightly more nuanced and doesn’t reference when shielding will end. It simply states that people should continue to shield even if they have been vaccinated until they are informed not to.

Anyone who is living with someone who is clinically extremely vulnerable can still attend work ‘where home-working is not possible’.  

You can read our advice on shielding here.

  1. Staff who refuse to wear masks

The updated guidance recommends that secondary school pupils, students and teaching staff wear appropriate face coverings when they are in the classroom. Previously, the government only advised wearing masks when in corridors and communal areas where social distancing couldn’t be easily be maintained. 

The guidance makes it clear that some students and staff are exempted from wearing face masks. This applies to anyone who:

  • can’t put on, wear or remove a face covering because of a physical impairment or disability, illness or mental health difficulties; or
  • needs to speak or help someone who relies on lip reading, clear sound or facial expression to communicate

If a member of staff refuses to wear a mask, ask them to explain why. If they are exempt (or claim to be) you can ask for reasonable information to verify this – such information about their medical condition or a note from their doctor. Please note: the government provides advice on exemptions which includes the ability for individuals to download an exemption card without having to answer any questions. Holding one of these cards doesn’t prove the person is clinically exempt.

If a member of staff doesn’t have to wear a mask you’ll need to conduct an individual risk assessment before deciding whether it’s safe to allow them to continue in their normal role. You should also consider if there’s any reasonable adjustments you can make to help them to continue to work safely, such as wearing a face shield or temporarily moving to a role where they have less face to face contact with students or other members of staff. If that’s not possible you may have to look at whether they can work from home.

You may be able to discipline anyone that doesn’t have a legitimate reason for not wearing a mask on the basis that they are disobeying a reasonable management instruction. You’ll need to follow your usual disciplinary process first and give a warning before threatening to dismiss them. Take advice if they claim that their decision not to wear a mask is a protected belief.

The guidance also says that ‘no pupil should be denied education on the grounds they are not wearing a face covering’. You will however, need to factor this into your staff risk assessments. 

  1. Anti vaxxers

Every adult aged 50 and above as well as those at most clinical risk should have been given the option to have one dose of the vaccination by mid-April. And, the government anticipates that every adult over the age of 18 will be able to be vaccinated by the end of July. It will of course take longer for everyone who wants a vaccine to receive the recommended two doses, but it’s now clear that one vaccine dose gives high protection from severe Covid.  Plus, there’s more evidence emerging that vaccination reduces viral transmission. 

Some of your staff may have already been vaccinated under the original priority list. It’s not yet clear whether teachers and support staff will move up the list once the government gets to the point where it is ready to start vaccinating the rest of the population.

The government has repeatedly emphasised that people will not be forced to have a vaccine if they don’t want one. Instead, it has set out to persuade people that the vaccines are safe and that it’s in everyone’s interests to have one. Clearly, if the government can’t legally compel people to be vaccinated, you can’t frog march your staff to the nearest vaccination centre either.

You may be able to argue that it is a reasonable instruction to ask staff to take the vaccine once it’s offered to them and to potentially justify taking disciplinary action against those who refuse (without a good excuse).  Employment lawyers disagree about whether it is reasonable to ask, and take action against, any member of staff who refuses to be vaccinated. Our view is that it depends on a number of factors – the most important of which is whether vaccination will protect other members of staff or people they come into contact with such as , school children, students etc. 

We’ve written a longer article explaining the issues around the concept of ‘no jab, no job’ available here.

  1. Vaccination certificates

The government is considering some form of Covid status certification which could be used to ‘confirm in different settings that people have a lower risk of transmitting Covid-19 to others’  which may assist management in assessing specific risks in their schools and colleges. However, that review isn’t likely to report back until 21 June at the earliest.

In the meantime, some of our education clients have asked if they can ask members of staff to tell them once they have been vaccinated or offered a vaccine. Our view is it depends on whether asking them to be vaccinated is a reasonable management instruction. If it is, you’ll need this information to check compliance. Information about who has been vaccinated will constitute sensitive personal health data. The same will be true of information about who has not been vaccinated and why. You’ll need to comply with GDPR rules on processing special category data, which means that you have to identify the lawful basis you are relying on for monitoring, update your Privacy Notices and only retain the information for as long as it’s needed. Our GDPR experts can help you with this.     

If you can’t demonstrate that asking staff to be vaccinated is a reasonable management instruction, you can’t insist they provide you with this information. Plus, you probably shouldn’t even be asking staff to volunteer this information unless you have a good (lawful) reason for needing to know the answer.  

  1. Lateral flow tests

The guidance indicated that secondary schools and FE colleges should offer pupils/students on-site testing from 8 March. Testing and return of pupils can be phased during the first week to manage the number of pupils/students passing through the test site at any one time. Schools and colleges are told to offer three tests, three to five days apart and to prioritise vulnerable children and children of critical workers, and year groups 10 to 13. 

The government has said that schools and colleges should be able to test a student every five minutes. Many schools and colleges are struggling with the logistics of mass testing and are worried that they don’t have the staff to undertake such a challenging regime. 

The government has recently updated its guidance on rapid asymptomatic testing in specialist settings which states:

‘We will support schools and colleges with the costs of testing. Funding will be paid retrospectively. We expect the main cost incurred to be workforce costs, but schools and colleges will have the discretion to spend this in order to meet other reasonable testing costs.

We have accounted for different staffing levels needed in special schools, APs and specialist colleges to deliver testing. Non-maintained special schools and independent special schools will also receive funding to support them with testing costs.

In the exceptional circumstances where schools or special post-16 institutions may not have the capacity to deliver assisted swabbing (due to, for example, staff sickness) then further support may be available. Contact us for more information.’

Staff and pupils/students have to consent to being tested – you can’t force them to do so. We answered a series of FAQ about this in December which you can read here

  1. Holidays

The earliest date people can leave their homes to go on holiday within the UK is 12 April, and there’ll be a review before we know when we can go abroad for a holiday. 

We don’t yet know if people travelling abroad will have to quarantine when they return to the UK and it might be worth mentioning to optimistic members of staff who want to book a holiday somewhere warm during Whitsun to perhaps wait until the government has announced its approach. If you set out your expectations now you may have fewer headaches to contend with later on.

Helen Dyke is a Senior Associate in the Employment Team at Irwin Mitchell

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