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School opening FAQ – 4 January 2021

4 January 2021

With the new term starting this week and the evolving picture nationally with the pandemic, schools and trusts are understandably looking for support in their decision-making on school opening. Whilst much of the framework for how you make decisions on this issue will be broadly familiar to you from other points in the pandemic over the last nine months, we have put together this short FAQ to assist you.

You can also get support by visiting our dedicated coronavirus hub here, speak to a member of the team or send your query to us at education@brownejacobson.com.

The legal responsibility for running the school rests ultimately with the board of trustees (in an academy) or the governing body (for a maintained school) however, the practical elements covered above including updating any risk assessment would be matters for school leaders. Our view is that the decisions on closure are decisions that the board and senior leaders should undertake together.

Each academy trust has its own legal, corporate structure through its Memorandum and Articles of Association. The Memorandum and Articles of Association establishes the academy trust as a company limited by guarantee which is the legal entity that carries out the activities of the trust. It is usually this legal entity which is the employer for the purposes of the Health & Safety at Work Act 1974 and therefore the entity upon which health and safety obligations rests. Government and Health and Safety Executive guidance makes clear, academy trusts as employers are required to assess the risks presented by the return of children and staff into the school.

The trust must ensure a suitable and sufficient assessment of the health and safety risks presented by opening is undertaken and necessary control measures identified and implemented. Whilst invariably such assessments will actually be undertaken on the ground by executive teams, headteachers and schools themselves, as officers of the trust trustees are naturally expected to work in conjunction with schools to discharge the health and safety responsibilities of the trust.

It will then be for the trust to decide whether or not it is safe for schools to open either fully or partially. Trusts should also seek guidance and advice from Public Health England and local health protection teams.

The HSE regularly reviews the content of its website in respect of working safely during the pandemic. The HSE’s advice has not substantially changed and the key tools to maintaining a safe workplace remains risk assessment, social distancing, hygiene and cleanliness, ventilation, working from home if possible and communicating with staff.

Risk assessments will be the key tool by which the academy trust will make decisions about the risks posed to staff and students, the control measures that can be implemented to mitigate those risks and ultimately whether or not the control measures can reduce the risk to as low as reasonably practicable.

Covid-19 risk assessments will be almost constantly under review and the control measures will be regularly and thoroughly monitored to ensure compliance and that the control measures are effective ‘on the ground’. This review and monitoring process should highlight any increase in risk and whether or not additional or adequate control measures can be implemented to reduce it to as low as reasonably practicable. The key thing here is that you do not have to eliminate risk. It may be that there is greater risk due to the prevalence of the infection in certain areas, but as long as social distancing, hygiene, cleaning etc. remain in place and you are doing all you can to monitor the measures in place then you are likely to have reduced the risk to as low as reasonably practicable.

Establishing and maintaining links with the local authority environmental health protection team and other schools and colleges in your local area will be invaluable in identifying and sharing early information about potential local outbreaks and how to mitigate them.

If trusts are of the view that the risk to staff and pupils is so great that it cannot be mitigated by any means, then we recommend discussing this with our health and safety team as soon as possible.

If the potential closure decision relates to health and safety concerns about physical on-site attendance then we would expect that any risk assessment is updated and consideration is given to whether any concerns about health and safety can be overcome through additional or adequate control measures to reduce any risk to as low as reasonably practicable. The key thing here is that you do not have to eliminate any risk. It may be that there is greater risk due to the prevalence of the infection in certain areas, but as long as social distancing, hygiene, cleaning, ventilation and communication of safety messages remain in place and you are doing all you can to monitor the measures in place then you are likely to have reduced the risk to as low as reasonably practicable. If you come to the view that risks from increased transmissibility of the virus cannot be overcome by stringent adherence to existing control measures or an increase in current control measures, then our advice would be that you seek advice from your Public Health England team and take specific legal advice on your concerns.

If instead, any proposed on-site closure is due to a lack of staff that would make physical on-site attendance (either partial or full) unsafe, then if you cannot obtain staff or (following our staffing advice on this below) cannot convince staff that it is safe to attend, it may be that either a partial or full on-site closure needs to be considered. This would need to be kept under constant review by senior leaders and the board to determine whether anything had changed to allow on-site attendance to resume.

Our advice would be that where at all possible, on-site provision should continue for those pupils that are vulnerable and for key worker children. For other pupils the remote education duty would require the school to provide remote education to children who were not physically in school.

Essentially the function of safety representatives is to represent employees in consultation with employers about health and safety matters.

Every employer shall consult safety representatives in good time with regard to:

  • the introduction of any measure in the workplace which may substantially affect the health and safety of employees;
  • any health and safety information they are required to provide to the employees they represent e.g. the risks identified from a risk assessment and the protective and preventative measures.

Employers are required to consult health and safety representatives about these matters before telling them what has been decided and before they make changes.

In good time is not defined but should allow time for safety representatives to express their views and take account of any response.

In order to ensure you are complying with these obligations we would recommend contacting appointed health and safety representatives and agreeing how information can be shared. Fostering these relationships will be key to ensuring that feedback and decisions can be communicated efficiently and effectively.

Academy trusts have requirements placed on them under their funding agreement to operate an academy but there is nothing in the funding agreement about Covid or requirements around opening or closing. The general principle around departmental guidance is that academies need to consider it when taking a relevant decision.

The same applies to maintained schools who are able to take opening and closing decisions based on health and safety grounds following a risk assessment.

Under the Coronavirus Act 2020 the (Department for Education (DfE) does have powers to issue directions to schools to require them to open to on-site attendance which could be enforced by an injunction if not ultimately followed. Whilst at the time of writing the DfE has not issued a direction generally to schools for them to remain open, prior to Christmas some schools were threatened with a direction being issued and one local authority was issued with a direction requiring a change of local policy around school closures. This is why it is important that advice is taken prior to any decision to close on health and safety grounds relating to Covid.

Aside from the cost consequences of the DfE seeking an injunction against a school, the other consequences would likely be reputational if a direction was issued given the likely press attention of this.

If the decision to close is taken due to a lack of staff in school that would mean it is not safe to open (whether wholly or partly) for on-site attendance, then as above and subject to the school seeking to do all it can to obtain staff, any closure or partial closure would in all likelihood be reasonable. Any such decision would need to be kept under constant review.

Academy trusts may decide to not physically re-open one or more school sites to all pupils contrary to the DfE guidance. The guidance issued by the DfE is not legally binding but should be considered by schools prior to making any decision around closure. In addition, schools should be clear about the rationale for any proposed closure. Whether a decision to stop on-site attendance should be made will depend on the circumstances in the school and local area and what the rationale for this proposed decision is.

Clearly, the DfE could decide to use its powers under the Coronavirus Act and issue a direction to the trust as mentioned above.

Stakeholders including parents and staff would need to be informed of any decision on the closure of on-site provision as soon as possible so that arrangements could be made by parents.

Employees have the right not to suffer a detriment or be dismissed (including constructive dismissal) for leaving work or refusing to return to work when they have a reasonable belief that they are in serious and imminent danger (section 44(1)(d) and 100(1)(d)). Employees have similar rights not to be subjected to a detriment or dismissed for taking appropriate steps to protect themselves or other persons from danger (section 44(1)(e) and 100(1)(e)).

An employee’s right to refuse to work or take other appropriate steps under section 44 and section 100 of the ERA depends on the reasonableness of their own view about the danger, considering what they know and have been told. Therefore, it is important for school leaders to communicate with staff about how they are controlling the risks by sharing risk assessments and FAQs.

Furthermore, it is important to train staff on their own health and safety duties and responsibilities and how to protect themselves and others. It is important to inform staff that they must remove themselves from obvious danger (e.g. people not following social distancing guidance or not wearing a mask in communal areas). Taking these steps will help reduce the risk of negligence claims over the behaviour of others. Furthermore, it will help staff avert danger without having to leave the workplace under section 44 of the ERA.

Leaders should take action against those who are not following the guidance and putting others at risk as this limits the risk of employer’s vicarious liability for others’ actions. It also removes the serious and imminent threat of danger to employees and therefore limits an employee’s ability to refuse to work in the workplace because of what others may be doing. This is particularly challenging if the employee’s concerns are about the behaviour of children.

It is important that you act quickly to rectify legitimate safety concerns raised through your workplace reporting channels. This will help to mitigate any negligence claims and also show that your speed of response works to remove any serious/imminent danger. If the serious/imminent danger is mitigated through risk assessment and measures introduced then it could be argued that the employee no longer needs to leave the workplace.

You will also need to make sure that you understand the specific concerns that the individual employee has - it will be important for you to communicate how you have resolved those concerns (or explained why they are not applicable) as it makes it less likely for the employee(s) to justify any continuing refusal to attend the workplace.

(a) Their pay
If an employee is refusing to attend work on the grounds of section 44 then it will come down to the reasonableness of their own belief that they will be in danger if they were to attend work. It is our advice that you maintain full pay until you are in a position where you are confident that it is no longer reasonable for the employee to believe they face serious/imminent danger in the workplace.

If you have followed steps highlighted in FAQ 9 above (informed employees of the reasonably practicable steps taken to mitigate risks and provided instruction to staff in order that they can safeguard themselves in the workplace without having to remove themselves from the workplace) then it is likely that you will be able to raise confidence quickly that it is no longer reasonable for the employee to believe they face serious/imminent danger upon returning to work. This should help to bring matters regarding section 44 to a close sooner rather than later. Whilst the employee refuses to attend the workplace, they can still carry out work and you may decide to give them work to do from home.

If you are not confident that you can argue that it is no longer reasonable for the employee to believe that they face serious/imminent danger in the workplace, then you may need to continue reviewing your risk assessments and instead put in place alternative work arrangements so that the employee is not absent from work and is instead working from home, or you may decide to require the individual to work in other environments or other situations where the risk has been reasonably practicably mitigated (e.g. where bubbles have closed earlier in the year, the teacher has attended the workplace and delivered teaching in the classroom to pupils via virtual means, e.g. Teams/Zoom/Google Classroom).

An employee whose pay is maintained in these circumstances has suffered no detriment for the purposes of a claim under section 44 of the ERA or indeed under whistleblowing. This will minimise the risk of unlawful deductions from wages and constructive unfair dismissal claims.

(b) How their absence will be managed and what action can be taken to tackle it
As explained in FAQ 10a it is possible that you will be able to raise confidence quickly that it is no longer reasonable for the employee to believe they face serious/imminent danger upon returning to work. Conversations can then take place about bringing the employee back into the workplace. This is not without its challenge as it is likely that the employee will be feeling incredibly anxious and it will require a great deal of leadership to work with the employee, to reassure them that you have their best interests at heart and that you are committed to continually reviewing the health and safety aspects of the workplace. Employers have a duty of care regarding employee wellbeing as well, so it is important to keep reviewing the situation and reassuring through regular communication. This will feel much like it did in June when schools fully opened after the first lockdown.

If you decide that the employee should work from home, then the employee will not be absent. You will just need to keep working arrangements under regular review.

If the employee decides to get signed off from work by a GP on mental health grounds then you will need to manage the absence in line with your sickness absence procedures. The employee will receive normal sick pay.

If the employee cannot work from home and also won’t attend the workplace and you have done all you can to both reassure the employee and reasonably and practicably mitigate risks then we would advise you to contact us for specialist legal advice. Moving to formal action should be done carefully and not without specialist legal advice first.

The government guidance states that these employees should continue to attend the workplace and should not work from home like employees who are CEV themselves. However, if resource allows and the education provision is not affected then you may want to treat the employee as if they are CEV themselves as this avoids complex arguments about associative discrimination rights; rights under section 44 and section 100 of the ERA also extend to dangers faced by others and this could therefore include those within the employee’s household/bubble.

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Mark Blois

Mark Blois

Partner and Head of Education

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