The Government currently hopes that most primary aged children will go back to school for at least a month before the summer break.
Trade unions have challenged the proposals, and whether it is appropriate to ask staff to return to work in schools, and whether it is safe to do so.
The starting point is that schools will be expected to comply with the phased re-opening guidance and employees can be expected to return to the workplace when requested to perform their contractual duties. It is however essential that schools have first taken steps to ensure that the workplace and arrangements are as safe as possible for staff and pupils.
Employers must recognise that some categories of employee may not be able to safely return to work, either due to their own vulnerability, or that of a member of their household. Employees may also object to returning to work simply because they do not consider it safe, notwithstanding changes to working practices in place. Childcare will remain an obstacle for many.
It will be important for employers to consider individuals' personal circumstances and concerns and take advice where necessary. Specific legal protection against detriment and dismissal applies in relation to health and safety concerns and certain categories of staff, for example, disabled employees and pregnant women.
This note looks at the initial steps schools should take to ensure they are in as strong a position as possible to ask staff to return to the workplace. It also highlights some particular cases when schools will need to approach this more carefully.
Employers owe a general duty of care to their employees, as well as specific legal obligations to ensure their health, safety and welfare. It is critical that, before employees return to the workplace, risks relating to coronavirus (COVID-19) are mitigated as far as reasonably practicable. Schools should ensure they have regard to government guidance.
The guidance requires employers to carry out a risk assessment and establish safe working practices in agreement with their employees; directly or via employee representatives, where appropriate. Larger employers are also required to publish the risk assessment on their websites. The guidelines will provide a useful framework for employers and compliance with them will assist employers in demonstrating they have discharged their duties to their employees.
Notwithstanding the steps that a school takes, employees may still feel concerned about the risks of returning to the workplace, and of course these cannot be overcome entirely. Where individuals raise concerns, employers should ensure these are considered and appropriately addressed.
Schools should be aware that there are additional safeguards to protect employees from being dismissed or subjected to any other detriment where the employee reasonably believes there to be serious and imminent danger in returning to work.
Staff Who Are 'Shielding'
Individuals with certain medical conditions have been identified by the Government as "clinically extremely vulnerable" and have been advised to 'shield'. If an individual is shielding, they should stay at home, not leaving the house at all. This guidance is currently in place until at least the end of June.
The new government guidance confirms that individuals who are shielding should continue to do so. This means that if you employ any clinically extremely vulnerable staff, they should not return to the workplace yet. They can, of course, be asked to work remotely, or potentially be furloughed (where appropriate).
There is a second category of individuals who have been identified as "clinically vulnerable". This category includes;
Individuals who fall into this category are advised to remain at home as much as possible, and to take particular care to minimise contact with others outside their households.
Where they can work remotely, then ideally this category of staff should do so. If they do need to return to the workplace, employers should ensure the workplace is made as safe as possible with rigorous social distancing and other measures put in place. Individual risk assessments will be needed and, depending on the circumstances, medical or occupational health advice might be necessary, and ultimately the decision could be taken that the individual concerned should remain away from work.
Schools should also be aware of the framework of suspension on medical grounds for pregnant employees.
Employees with Other Underlying Health Conditions
Even if employees do not have the conditions that have been specifically identified as making them vulnerable, they may still have underlying health conditions that mean they are particularly concerned about the risks of the coronavirus.
Where employees have long term physical or mental health conditions, these may fall within the scope of the Equality Act 2010, and so employers will have to consider whether any additional reasonable adjustments are needed to support them and will need to ensure that any actions in relation to these members of staff are justified.
Employees Who Live with Someone Who Is Vulnerable
We are also aware of employees who are reluctant to return to work because they are concerned about the risk of contagion for someone in the family or with whom they reside, particularly where they are in one of the most vulnerable categories. The Government's guidance states that these employees do not need to remain at home and can attend work, however robust social distancing measures will need to be put in place.
Individuals may have protection under 'discrimination by association' legislation, and so concerns do need to be handled carefully.
As schools are only opening on a phased basis, many employees will still have their own childcare responsibilities, which mean they face practical difficulties in returning to the workplace.
This scenario is not covered in the Government's guidance, but the Prime Minister has since confirmed that employees who are struggling with childcare cannot be compelled to return to work, and employers should adopt a "reasonable" approach to dealing with staff in this position.
Employees may consider their options to make a request for flexible working, or for time off for dependents or parental leave. These rights are unpaid subject to an employer's own policies.
The DfE has just published Overview of scientific information on coronavirus (COVID-19). This mentions that there is evidence that the risk of death involving coronavirus among some ethnic groups is significantly higher.
While the exact reasons for this are not currently known, schools should be especially sensitive to the needs and worries of BAME members of staff and there may be Equality Act 2010 considerations.
Getting to Work and Public Transport
Although not a category involving specific legal protections, the way in which staff can get to work will increase their risk profile, and perhaps their anxieties about doing so. It may be a relevant factor as to whether staff are able to walk, cycle or drive to work, or if they will need to use public transport.
There will no doubt be challenges for schools in how they manage the phased re-opening to deliver educational services on site as well as maintaining a remote operation. Schools will want to provide continuity for pupils, where possible, and so may wish to call on teachers of those year groups returning to school.
Schools will be in a strong position if they have complied, as far as reasonably possible, with relevant health and safety guidance and shared this with staff. It may be helpful to gather information from staff about their personal circumstances, in order that this can be taken into account, and particular risks identified and managed.
Notwithstanding this, individuals may still have concerns about returning to the workplace and schools should be sensitive to this. We would not advocate sanctioning or dismissing staff for unauthorised absence for refusal to return to work at the current time. Initially, it may be possible to manage the workforce with those who are willing and able to return. Other staff can be allocated to remote learning or, if this is not possible, schools may wish to consider an agreed period of unpaid leave.
As more pupils return, this may be more challenging, and staff will need to understand that, even if their preferences can be accommodated now, arrangements will need to be kept under review.