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Coronavirus employer toolkit for schools and academies

8 April 2020

Please note: the information contained in our legal updates are correct as of the original date of publication

The COVID-19 pandemic is putting an enormous amount of pressure on human resources functions worldwide – especially as we navigate a constantly changing set of circumstances.

Government advice and support is constantly developing. As such it is a challenge to keep on top of the guidance and stay current. With that in mind, we have put together a number of HR and employment related resources to help schools and academies manage their people as best as they can, during what is a very challenging time.

We hope these resources will be of assistance to you alongside our regular programme of webinars and additional content available in our coronavirus hub. As always, if you have any feedback on your experience or any of the guidance/resources provided please get in touch.

Resources in our employer toolkit for schools and academies include:

  1. Guidance on managing your legal and HR obligations during COVID-19
  2. FAQ for employees
  3. Details of letter templates available to help you manage differing circumstances

Additional responses to questions posed in relation to wider education law matters including admissions, data protection and governance can be found here. If your question is not listed or you would like to discuss a specific matter with us please get in touch.

1. Managing your legal and HR obligations during COVID-19 – guidance

We will continue to update this content as and when appropriate.

Current guidance in this section relates to:

The Government has introduced the Coronavirus Job Retention Scheme (CJRS) which allows the employer to furlough staff and reclaim 80% of their salary in certain circumstances.

As a public-funded body, the assumption is that academies and schools should not need to apply to the CJRS for the majority of their staff, because they are continuing to receive funding for these posts.

You may have staff who are funded from external funding and you may want to consider applying the CJRS in relation to these staff – for example, separate sports hubs, nursery staff topped up by parent funding, employed catering staff or peripatetic music teachers paid for directly by parents ; it may be these staff could be furloughed. The government has issued guidance which contains the criteria which will be used when assessing applications under the CJRS.

“Educational settings that are in receipt of some public funding should only furlough employees, and therefore seek support through the Coronavirus Job Retention Scheme, if they meet the following conditions:

  • the employee works in an area of business where services are temporarily not required and where their salary is not covered by public funding
  • the employee would otherwise be made redundant or laid off
  • the employee is not involved in delivering provision that has already been funded
  • (where appropriate) the employee is not required to deliver provision for a child of a critical worker and/or vulnerable child
  • the grant from the Coronavirus Job Retention Scheme would not lead to financial reserves being created

It is also essential that the grant from the Coronavirus Job Retention Scheme should not be duplicative of other public grants that your organisations may receive. DfE is considering appropriate measures to monitor use of these schemes in order to detect any duplication of funding, and will be considering potential options to recover misused public funding as required.”

We recommend that you keep clear documentation of any decision to furlough staff and why they are not deemed to be funded through the public purse.

Should you require it, we can also provide you with a copy of our template furlough letter to help you formally communicate the arrangement made between you and the individual. To receive your copy please contact us.

Furlough and annual leave

If an employee is 'furloughed', they can still request and take their holiday in the usual way. This includes taking bank holidays.

Topping up salary whilst on furlough

The guidance is clear that employers are able to top up the 20%. This will be helpful given that with some groups of staff you may have to choose who is furloughed or not, so realistically you will need to top those furloughed up so they don’t suffer a detriment in relation to those who do the same roles but are not furloughed.

In this section we review union stances on:

  1. the types of work staff can be asked to do at home
  2. managing ongoing casework, disciplinary/grievance procedures
  3. 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.

The Government has issued a procurement notice to all public bodies (Procurement Policy Note - Supplier relief due to COVID (PPN-02-20)) setting out guidance on paying suppliers, the application for schools is also covered in the additional guidance.

This is not legally binding on schools but schools and academies are “encouraged to apply the approach” as part of their wider public sector obligations.

The premise of the guidance is that agency workers on live assignments should continue to be paid, in some circumstances at 80%. Note that for any agency workers who have been with you for 12 weeks or more, where you are continuing to pay them, you will need to ensure that they receive pay that matches a comparator. Suppliers should come to you with their proposals.

How you pay your casual staff will depend on whether they are employees, workers or self-employed and the nature of the engagement. If they are self-employed then no payment needs to be made and the individual should claim from the Government directly. If they are employees or workers then you will need to decide whether to continue to pay them. The intention behind Government advice is that, where possible, individuals should continue to be paid and, as you have budgeted for this work, that seems the most sensible approach. However, there may be examples of individuals on ‘casual’/zero hours contracts where there is not a regular pattern of expected work/nothing booked in, where you decide not to pay.

Where you are going to pay, the question then is how much. If they were already rotated to work, then to pay for the booked-in time is the most obvious route. If they work regularly (and this was expected to continue), the 12-week averaging provisions set out below may well be relevant. If they work once a year (like invigilators) then looking back at the previous year to see how many hours were needed may be more appropriate.

There is no legal requirement to pay casual workers. However, many schools are, and from a reputational perspective it would be a good idea to consider continuing to do so, given the expectations on the public sector.

The 12-week period is based on the method of calculating a week’s pay under the Employment Rights Act (ERA) for employees whose hours vary. From 6 April, there will be a 52-week average introduced, but this is for holiday-pay calculations only; it doesn’t change the ERA wording – instead it amends it for holiday-pay purposes within the Working Time Regulations. You may, however, get employees suggesting that a 52-week average is appropriate.

The 12-week approach seems reasonable to us; however, if schools are relying on this and trying to comply with the ERA, then any weeks in which no remuneration was payable need to be disregarded. Then you continue back to get to the 12 weeks (so use the last 12 weeks in which they actually worked).

There is no legal requirement to pay casual workers. However, many schools are, and reputationally it would be a good idea to consider continuing to do so where you can meet the ongoing expectations on the public sector.

The DBS standard and enhanced ID checking guidance has been changed temporarily, to ensure that all necessary checks are being carried out, without taking place face-to-face.

As of 19 March 2020, the change enables:

  • ID documents to be viewed over video link
  • Scanned images to be used in advance of the DBS check being submitted

The applicant will then be required to present the original versions of these documents on the first day of their employment or volunteering role. You may wish to add our template annex to your child protection policy.

Some schools may not be able to open, or employees may be needed on other sites, either within a local authority or multi-academy trust. They can be required to do so if the contract permits this; you will need to exercise reasonable discretion here. In the absence of an express clause allowing this, it may not be possible, so please take advice if this is the case.

We are frequently asked by clients whether they can undertake a job selection process during the partial school closure period and, if so, how do they go about it.

In the absence of being able to undertake face-to-face interviews, employers have to think innovatively about how to tackle this challenge.

We are in the process of drafting a specific guidance document and templates for this. They will be live shortly.

The Government has issued guidance in relation to those staff currently on their NQT year here.

2. FAQ for employees

We have drafted a template FAQ that you may wish to use when drafting responses to questions you receive from your employees.

Available in Word format, you can tailor the responses to the position or approach your school or trust is taking.

3. Letter templates to help you manage differing circumstances

We have drafted a series of letters that you may wish to use when managing differing COVID-19 related circumstances. Copies of the templates are provided free of charge and available on request here.

Our key worker template letter is intended for you to send to your staff who are continuing to attend school as key workers. The purpose of this letter is for your staff to be able to demonstrate to the relevant authorities the purpose of their movements should they be stopped or questioned whilst travelling to and from work.

These resources are intended for those staff who are still in probation during the closure period. The letters confirm extension of probation due to school closure and/or remote working.

The method by which you can extend probation will depend on whether the employee’s contract of employment allows you to extend the probationary period. If so, then you can use our probation extension template letter to extend it.

If the contract doesn’t provide the right to extend probation, then you can still extend it but will need the individual’s agreement to do so. Once an agreement is in place you can use our alternative template letter that accounts for circumstances where probation is being extended but there is no provision in the contract to extend.

If the member of staff does not agree with your decision/recommendation, take further advice before deciding on whether to terminate.

If you need to change the start date of a new employee, the approach you will take will depend on whether there is a binding agreement (that is, offer and acceptance) in place or not.

If the offer has not yet become binding, one option is to withdraw the first offer and make a new offer with a different start date.

If the offer has become binding, subject to agreement with the new employee, you would need to make a variation to the contract. You can then use our template postponement of start date letter to communicate this with the individual.

A verbal offer can count – so it will depend on whether a start date was mentioned or not when this was made on how you proceed.

You should be mindful that putting a start date back is likely to be off-putting to applicants as it will likely leave them in a difficult situation.

If your original offer of employment was conditional, but you now need to withdraw it, you can confirm your position and withdraw it using our withdrawing a conditional offer of employment template letter.

If your offer of employment was unconditional, but you now need to withdraw it, then you’ll need to withdraw the offer and pay notice. You can do this using our withdrawing an unconditional offer of employment template letter.

You should, however, be mindful that withdrawing any offer of employment may leave you in a difficult position with covering staffing come September, or earlier if school returns before then.

Should you need to furlough an employee, you can use this template to formally communicate the arrangement made between you and the individual.

Coronavirus support

We are helping across business, health, education and government sectors:

training and events

12Mar

ASCL Annual Conference Online

Come and meet the team at ASCL’s annual conference.

View event

24Mar

Optimus MAT Summit Hilton Birmingham Metropole Hotel, The NEC Birmingham, Pendigo Way, Birmingham, B40 1PP

Come and meet the team at Optimus’ annual conference.

View event

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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