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Back to School Update

on Friday, 28 August 2020.

All schools will be gearing up for Inset training for staff and the return of pupils. This year's arrangements will be more important than ever, given school closures since March and the changing guidance.

Quite apart from coronavirus (COVID-19), there is a new version of KCSIE in force from 1 September, other regulatory changes requiring a review of policies and procedures and a new Commentary on the Standards from ISI.

We have updated our policies and procedures accordingly and subscribers to our Compliance Toolkit have received detailed commentary about each of the changes and an overarching 'Back to school' checklist identifying the changes introduced over the last year and action required as a result.

COVID-19 Update

All schools will be gearing up to a full re-opening amid the rapidly changing Government guidance. We continue to keep our guidance notes and resources on OnStream up to date. We have summarised some of the most significant developments for independent schools.

Face Coverings

Schools will be aware of the new guidance: Face coverings in education. This confirms that schools can require staff and pupils in year 7 and above in England to wear face coverings and should do so when they are moving around the school in areas which are subject to local lockdown, although even then not in classrooms. This should be contrasted with earlier guidance where the wearing of face coverings in schools was expressly discouraged.

The use of face coverings should therefore be expressly considered as part of the School's COVID-19 risk assessments and their use should be kept under review. This guidance, scientific advice and wider societal expectations are likely to mean that it is generally appropriate to:

  • permit the wearing of face coverings by staff and pupils
  • mandate it in certain circumstances (including, in areas subject to local lockdown, when moving around the school and social distancing (of 1 metre or more) can't be safely managed)

The Government maintains the view that face coverings are not generally appropriate in the classroom.

School Re-Opening

Schools are required to consider what arrangements are appropriate for their stakeholders and take reasonable steps to protect them from COVID-19. While there is extensive guidance, schools will usually have discretion to determine what measures are appropriate. They should update their risk assessments ahead of re-opening, share these with interested parties and keep them under review. In particular we would recommend clarity about the school's position on face coverings, test and trace arrangements and what the school will do in the event of a suspected case or local lockdown.

We have updated our guidance ahead of the full re-opening of schools. It includes a range of FAQs, including;

We will continue to add to this as the guidance changes and/or in response to queries from clients. Should you have any queries which we have not addressed already, please contact us.

Coronavirus Legal Advice

Shielding in England Paused from 1 August 2020

From 1 August 2020, government advice changed so that staff who were previously shielding can return to work in most circumstances. In advance of staff returning, schools need to have implemented the system of controls, as well as their own workplace risk assessment. The guidance acknowledges that working from home may not be possible due to the nature of work carried out in schools, but if remote working can be accommodated this should remain an option for extremely clinically vulnerable staff. Practically speaking, schools should take the opportunity to discuss the basis on which staff who were formerly shielding will return to work. Action taken to make the school as safe as possible should be communicated and staff should be given the opportunity to air specific concerns relating to their personal circumstances so that these can be addressed as far as possible prior to their return.

Furloughed Staff Statutory Notice Pay and Redundancy Pay Calculations Must Be Based on Normal Salary

There has been much debate about the interaction between furlough and redundancy processes. The Government has confirmed staff who are made redundant whilst furloughed should receive statutory notice and redundancy payments calculated based on their unreduced salary, rather than any lower, furlough rate of pay. Schools who make redundancies during furlough leave can continue to use the Coronavirus Job Retention Scheme (CJRS) to reclaim notice pay up to the cap, so long as staff work their notice period and are not paid in lieu. As had already been confirmed, the CJRS cannot be used to pay redundancy payments, which must be financed independently by schools.

Travel Quarantine List Continues to Evolve

The removal, at short notice, of countries such as France, Spain and Belgium from the travel corridor exemption list highlights how quickly international travel advice continues to change during the pandemic. The changes to the travel corridor exemption list can mean that staff who thought they would be able to return to school at the start of term in September find they have to undergo a 14-day mandatory isolation period instead. This highlights the importance of encouraging staff to keep schools informed of travel plans, of considering what remote working opportunities will remain available from September, and of drawing staff attention to unforeseen absence and pay policies where these exist.

Minimum Self-Isolation Period Extended from Seven to Ten Days

On 31 July 2020, Public Health England updated its guidance to increase the minimum self-isolation period for COVID-19 from seven to ten days for individuals suffering with a suspected or confirmed case of COVID-19. Individuals sharing a household with someone with a suspected or confirmed case of COVID-19 must isolate for a minimum 14 day period. Corresponding Statutory Sick Pay (General) (Coronavirus Amendment) (No.5) Regulations 2020 also came into force on 5 August 2020, which provide that a person isolating as an individual or as part of a household in accordance with the updated guidance will be deemed incapable of work for statutory sick pay purposes. Staff can self-certify for their first seven days of absence and may thereafter obtain a self-isolation note from the NHS website or app.

HMRC Guidance Published on CJRS Errors and Penalties

HMRC has published two new notes which set out how inaccurate CJRS claims will be addressed. The first, the errors guide, sets out what schools need to do if they have claimed too much or too little under the CJRS. The penalties guide sets out what action HMRC might take in the event of an overclaim, namely that HMRC may recover the whole amount of the overpayment with interest and penalties. HMRC may also 'name and shame' employers who have deliberately misused the CJRS, although where an overclaim has been made in error this will also be taken into account by HMRC when considering what remedial action to take.

Job Retention Bonus Policy Paper Published

A policy paper has been published to provide more information on the Government's Job Retention Bonus, due to be paid out in January 2021. The paper confirms the bonus will be a one-off taxable payment of £1,000 in respect of every employee previously claimed for under the CJRS who remains continuously employed until 31 January 2021. Furloughed staff need to have been paid at least £520 per month between 1 November 2020 and 31 January 2021, have Real Time Information records for the period to 31 January 2021, and must not be serving notice commencing before 1 February 2021. Staff who have transferred via TUPE transfer before 31 October 2020 may also be included in the bonus, so long as the new school has submitted a successful furlough claim for those individuals following the transfer. The Government has confirmed further guidance on how to claim the bonus will be published by the end of September 2021.

If you need specialist legal advice on re-opening schools, please contact Alice Reeve on 07741 271 363 or Tabitha Cave on 07747 075 825 in our Independent Schools team, or complete the form below.

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