In this section we review union stances on:
- the types of work staff can be asked to do at home
- managing ongoing casework, disciplinary/grievance procedures
- restructuring
1. The types of work staff can be asked to do at home
As the employer, you are entitled to direct all members of staff to carry out work that is reasonable. This is likely to encompass a slightly wider range of tasks than normal during these unusual circumstances.
This will vary by job title, but as a general guide we consider it to be reasonable to instruct teachers working from home to continue to set and mark work for pupils who have been affected by the Covid-19 school closures. We also consider that it would be reasonable to instruct teachers working from home to create resources or plan lessons for use either during the school closure periods or after schools reopen. Ultimately, members of staff can be expected to follow any reasonable management instruction during their contracted working hours whilst they continue to be paid.
The overwhelming feedback from our clients is that staff have responded to this crisis extremely well. You do have the legal power to withhold pay and discipline any member of staff who refuses to carry out a reasonable instruction whilst working from home, but we expect that this will not be necessary in the vast majority of cases and specific advice should be taken before doing so.
We are aware of reports that some teaching unions have a narrower view of what you can reasonably instruct your members of staff to do whilst working from home. We disagree with this narrow view and we understand that this is being raised with the teaching unions at a national level. We are able to provide specific advice in the event that the teaching unions become a barrier to your staff members carrying out work that you have assigned them.
2. Managing ongoing casework, disciplinary/grievance procedures
Whilst most employers are postponing capability and absence management, there will be other proceedings that need to be continued. There is nothing sacred about meeting in person: indeed, even the employment tribunal is moving to video hearings. The main thing is that employees have the ability to have their views taken into account before a decision is made. For example, gross misconduct cases and serious safeguarding cases must be completed and any new instances must be investigated. We would advise conducting these hearings via tele- or video-conference.
3. Restructures
For those of you currently going through a restructure, you may have no option but to continue, particularly if financial savings are needed. Provided you can meaningfully consult with staff – e.g. offer 1:2:1 meetings over the phone, liaise via email and letters - then you could continue with this process.
The unions are advising their members not to engage in redundancy processes during this time, but provided we engage, invite them to meetings and send them relevant information, then you can demonstrate you have tried to meaningfully consult. Provided that meaningful consultation has been undertaken, which can be done over the phone, continuing with the redundancies in light of the closures doesn’t add more risk to the process. You will need to ensure you follow due process and your policy.
Most of our clients who had announced and started a restructure are looking to continue with this. However, in most cases, where a decision to restructure has been made but not announced, the announcements are now tending to be postponed.
Clearly, you will need to consider the financial implications of postponing the restructure and its associated extra costs, versus continuing with the process now.We would advise considering your approach on a case-by-case basis and taking advice.