Who can attend work?
The categories of staff who are advised not to attend work are more limited than in the first lockdown with Clinically Extremely Vulnerable (CEV) staff and in most cases, those over 28 weeks of pregnancy advised not to attend the workplace. However, as before, schools will once again have high levels of absence due to illness, isolation, anxiety, childcare issues and health and safety concerns and in some cases will have to tailor their offer according to staff availability.
The latest measures are in place to reduce the transmission rate – not because schools are unsafe and in this respect, as few staff as necessary should attend the workplace, with others, wherever possible working from home. Note that the current guidance is that CEV staff should continue to shield even if they have received the vaccination.
Health and Safety Concerns
An employee cannot rely on union advice to refuse to work – they must demonstrate that they personally have legitimate grounds to refuse to attend their workplace. To rely on health and safety grounds, the individual would have to show that there is a “serious and imminent danger to them which cannot be averted.”
We would not anticipate staff in schools that are only open to children of critical workers/vulnerable children to submit a section 44 letter as it is expected that the risks will be “averted” sufficiently. Schools will be operating within national guidelines and regulations, there will be fewer pupils in school, fewer staff and schools will have whole school risk assessments and where applicable individual risk assessments in place to minimise the risks. In addition, and where applicable, testing will be introduced.
Addressing specific health and safety concerns with employees
Headteachers will need to discuss with employees their specific concerns and explain again the protective measures that are in place and deploy the workforce as flexibly as possible i.e. wherever possible they should be working at home, on rotas etc. Liabilities cannot be wholly eliminated but where the school is satisfied that a robust risk assessment is clear that sufficient measures are in place, they could insist on staff attending (so long as they do not have a legitimate reason not to such as being CEV and where they are critical to operations) and if they refuse pay could be stopped. However, we strongly advise schools to take advice before considering this option.
Health and safety concerns in settings that are fully open
In settings that are fully open (special and nursery schools), where staff submit s44 letters, headteachers should work with employees to undertake individual risk assessments, to explore and mitigate their specific concerns and explain again the protective measures that are in place. This dialogue should be ongoing and updated as things develop (e.g. where regular testing begins). Ultimately, we would not advise punitive measures such as stopping pay against staff who refuse to attend these settings and where this limits the provision they are able to offer, schools should discuss the situation with their LA as above.
COVID-19 testing for staff
As some schools begin the roll out of mass testing, two key staffing issues arise.
- Can schools require staff to assist in delivery of the testing programme? Schools cannot compel staff to take on duties relating to testing where this is outside the scope of their usual duties, although they can agree to do so on a voluntary basis. Where the roles defined as part of the programme cannot be filled internally, schools can use volunteers, casual or agency staff and/or the DfE suggests alternate resources – see FAQs: schools and colleges document sharing platform
- Can schools require staff to get tested regularly as part of the ongoing programme and/or engage in serial testing to reduce the need for isolation? No. Staff should be strongly encouraged to engage in the testing programme but cannot be compelled to do so – it is entirely voluntary. If they choose not to participate they will still be entitled to pay if they fall ill and/or have to isolate.