19 March 2020

Covid-19: Schools Update

In light of the Government announcement yesterday at 5.15 pm to close schools with effect from Monday next week, this note provides some initial thoughts on practical issues which schools might be thinking about. This note is correct at the time of writing, 19 March. More guidance providing clarity on some of these issues is expected later today and we will update schools when we can.

Pupil Issues

Will the school have to close from Monday and if so, for how long?

The announcement yesterday says schools will close from Monday until further notice as a response to the Coronavirus pandemic. There is no time frame yet specified but schools should plan for the short and long term with possible closure until September 2020.

What about schools remaining open for children of key workers?

There is no clear guidance on what this means in practice other than key workers include NHS staff, police and supermarket delivery drivers. In line with the announcement, where schools are unable to look after these children, the Government expects local authorities to work with the DfE to ensure an alternative option is available. We anticipate it will be very difficult for schools to remain open for a small number of children possibly across various year groups, with a skeleton staff and with staff providing remote learning to other pupils. More guidance on this is expected today.

Who decides who is a ‘key worker’ and does it have to be one or both parents?

This is likely to cover more than front line workers such as those in public service. Waiting for further clarification on what this means, hopefully, today.

What about vulnerable children?

Vulnerable children include those who have a social worker and those with an EHC Plan. The same applies here as for children of key workers; the Government expects local authorities to work with the DfE to ensure an alternative option is available.

What about during the Easter holidays?

The guidance encourages settings to look after key workers’ children and vulnerable children throughout the Easter holidays. This would usually be a time when children are not in school so we will need to wait for further guidance and perhaps look to the DfE for how this will work in practice.

What will happen with exams?

The announcement says there will be no exams in May/June. Beyond that, we simply don’t know. Expect more on this in the days to come. Whether schools will look to use predicted grades is a possibility. Schools will likely wish to consider the impact of this on pupils as well as whether they (if Year 11 or 13) will be back in school at all.

What about safeguarding issues and concerns?

Schools should continue to follow their Safeguarding Policy as far as possible and report any concerns in the usual way. Some children may struggle with home relationships and schools will need to think about how to support those children during this time. Home visits may not be possible but a telephone or video call might be an alternative option.

Staffing Issues

Will schools have to pay staff during the period of closure?

It is highly likely that schools will need to pay staff in full during the period of closure, irrespective of whether staff are able to work from home. The contract of employment may address this point, although it would not be a standard term in the sector. It is worth remembering that although schools will be closed to pupils, the school may remain open for administrative functions such as support staff, IT, finance etc.

What steps should schools now be taking in respect of staff in preparation for closure?

Schools will need to consider, as a matter of urgency, the extent to which staff are able to work from home. Schools should:

  • check that staff who can work from home have fully operational laptops/PC’s and phones;
  • consider whether to order additional laptops and mobile phones for employees who do not currently have them;
  • review licensing on software to ensure you have sufficient remote user permissions;
  • make it clear to staff working from home, if this is not the standard arrangement, that this is a temporary measure during the period of closure.

Clear and timely communication with staff will be key, in particular in relation to issues such as home working and pay.

How will schools address staffing in order to remain open for children of key workers?

As noted above, there is no clear guidance as yet on what this means in practice and we anticipate it will be very difficult for schools to remain open for a small number of children possibly across various year groups, with a skeleton staff.

The contract of employment should, however, provide scope for the Head to require staff to work in order to fulfil this requirement, although this would need to be assessed on a case by case basis.

What are our options if we are unable to sustain staff pay during the period of closure?

Ultimately, schools may need to consider making redundancies if the financial circumstances are such that they cannot continue to sustain salary payments during the period of closure.

If redundancies are necessary will the normal rules around staff consultation apply?

Ideally, schools should still seek to consult with staff prior to issuing notices of redundancy related to the period of closure, if that becomes necessary.

It is, however, acknowledged that swift decisions may need to be made in order to secure a school’s future viability. This will need to be balanced against the risk of Employment Tribunal claims in the event of a limited period of consultation or no consultation and will need to be assessed on a case by case basis.

What about the statutory collective consultation requirements?

If a school is proposing to dismiss as redundant 20 or more staff in a 90 day period statutory collective consultation obligations apply, including minimum periods of consultation.

Again, ideally, schools will be in a position to comply with these requirements when making large scale redundancies as a result of the period of closure.

There is, however, a limited exception to the obligation to collectively consult which applies where there are “special circumstances which render it not reasonably practicable” for the employer to comply. Each case will depend on its specific circumstances but an urgent need to make redundancies in the light of the enforced period of closure may fall within this exception.

The threat of insolvency is not of itself a special circumstance, although special circumstances may arise during an insolvency situation.

Can we lay off staff during the period of closure or reduce pay?

Unless there is express provision within the contract of employment (which would be unusual in the sector) it would be a breach of contract to lay off staff without agreement (i.e. not to pay them during the period of closure but to retain them as employees).

It is, however, open to schools to offer unpaid absence or reduced hours as an alternative to redundancy. It is also possible for employers and employees to agree to a reduced salary payment during a lay-off. This cannot be imposed if it’s not already in a contract of employment. The employer’s bargaining position is that it would have to consider redundancies if reduced lay-off pay cannot be agreed. Specific advice should be sought here as collective obligations to consult will arise.

Schools may wish to:

  • look at the contract of employment and/or handbook for anything that deals with lay-off and lay-off pay,
  • check that there is no collective bargaining arrangement in place,
  • consider how to agree with individual employees something less than normal pay if required.

Can we continue ongoing consultations regarding the Teachers’ Pension Scheme?

This will need to be assessed on a case by case basis subject to the needs of the school and the point it has reached in its consultations.

Just because the school has closed does not necessarily mean that consultations cannot progress, although there will inevitably be logistical issues in ensuring that staff have an opportunity to engage in the process and alternative means of consultation may need to be considered.

Where possible, however, schools may wish to exercise discretion and effectively suspend any ongoing consultation until further notice in the light of the coronavirus crisis and the period of closure.

What about ongoing TUPE consultations?

In respect of any acquisition or merger, it will remain important for the school to comply with its obligations under TUPE to inform and consult with affected staff. As noted above, schools may need to consider making alternative arrangements for consultation meetings (e.g. making greater use of written communications, telephone conferences and video meetings).

Commercial Issues

Will parents still need to pay schools fees when our school closes?

Generally yes, but this is subject to the terms of the parent contract so schools need to take specific advice. Unless the contract specifically caters for it then a failure to provide services outright may be a breach of contract by the school and entitle parents to a refund of fees paid. Schools should (and many already have) be considering how they can take reasonable steps to provide any remote learning for students.

Your parent contract may provide that fees should still be payable by parents where schools are forced to close because of an event beyond your control such as the outbreak of a pandemic. It is worth noting that force majeure clauses often require the school to give written notice to parents and the timing and wording of such notice will need to be carefully considered. There would usually be termination rights for parents, however, after a certain period often around 6 months (hopefully beyond the period of any school closure). It will be critical to engage with parents during this difficult time to demonstrate that you are taking reasonable steps to mitigate the situation such as online learning and explain why fees are due. We anticipate parents will be asking about payment of Term 3 invoices if the school is closed and it is not ‘learning’ in the usual way.

Will we be refunded if we cancel an overseas visit?

This depends on a number of factors including the terms and conditions of your contract with the tour operator; the reason and timing of the cancellation (your own risk assessment or Government advice); and the terms of your insurance policy. Any force majeure clause will need to be carefully considered.

What happens about our Easter/Summer lettings, do these need to cease?

There is no specific guidance on this and so it may be that schools would be permitted to continue with these lettings as it is not part of the educational provision. There may of course be problems encountered by those hiring facilities who can no longer continue to operate given the social distancing advice from the Government. The terms of any Hire Agreements need to be considered particularly in relation to the termination provisions.

Financial Impact and Mitigation

Are the government putting any financial assistance measures in place for schools?

The current measures announced on 17 March including generous payment holidays and grants for certain industries including leisure and hospitality, are not likely to be of much benefit to schools.

It remains to be seen when the detail is released if the Coronavirus Business Interruption Loan Scheme, which is essentially a substantially government backed loan scheme for businesses not in the perceived hardest his sectors, will be available to schools.

Measures in place to allow small and medium size employers to reclaim Statutory Sick Pay paid for sickness absence due to COVID-19 may also prove helpful.

However, it is fair to say that many of the measures do not go far enough to address the issues faced by schools. It is likely, if not probable, that following the government’s announcement of mandatory school closures ‘until further notice’ further funding measures will be introduced that do benefit schools.

Other tips to assist cash flow and financial resilience

Communication with key stakeholders including the parents, the bank, suppliers/service providers and the school staff is imperative to demonstrate that the school is being proactive where possible and will give earlier indications of problems that are likely to arise. Many parents will be fearful of their own financial position if their jobs are at risk as a result of the crisis and so opening up a dialogue with them may be beneficial, to understand how the school can best support their and their child’s needs. Whilst the government has announced mortgage payment holidays to be provided by lenders to those affected by Covid-19, that in itself may not be adequate for struggling families.

As with any business, consideration should be given to the schools cash requirements and outgoings should be prioritised to ensure that essential payments can be made.

Mitigation measures should be considered to determine how to manage cash flow on a short term basis, including seeking payment agreements with creditors and landlords, and payment holidays on loans etc.

Should I seek Insolvency Advice?

A large number of schools will struggle financially in the short term to come to terms with the financial impact of the Covid-19 pandemic. It is likely to be widely acknowledged that this period was exceptional, swift and Governors and Trustees are unlikely to come under criticism as a result. The financial robustness of the business immediately prior to the crisis will be key in determining how much action needs to be taken immediately and for those schools teetering on the precipice of solvency (whether that be on a cash flow or balance sheet basis), professional advice from a restructuring and insolvency specialist should be sought. Where a business is otherwise healthy prudent advice and ongoing monitoring will assist in planning a viable strategy to navigate these uncertain waters.

Regulatory (health and safety) Issues

What is the general position?

In general terms, schools should assess their immediate strategy in the short and longer terms, considering in particular:

  • how to ensure that current public health advice is effectively communicated to staff, pupils and parents and adhered to; and
  • having in place clear and consistent guidance as to how to respond to staff and pupils of key workers presenting with symptoms.

What should we do to protect staff and others?

Health and safety law says employers must take reasonable steps to protect workers. You can take reasonable precautions by following the guidance set out by Public Health England. You should also review and update your risk assessments and in particular supplement existing policies with a specific entry re Covid-19 or a separate risk assessment to be undertaken.

What should the risk assessment contain?

In general terms your ‘Covid-19’ risk assessment would include:

  • Step 1 – Look for the hazards – identify those that have presented with symptoms; have been in contact with others who have tested positive; or are in a vulnerable group.
  • Step 2 – Decide who might be harmed and how (i.e. those and those staff in vulnerable categories)
  • Step 3 – Evaluate the risks and decide whether the existing precautions are adequate or whether more should be done – i.e. ask yourself ‘Are we safe if we remain open and if X, Y, and Z is undertaken?’ (e.g. can protective equipment/clothing be provided; hand washing enforced; cleaning rota adhered to; class sizes minimised; etc.)
  • Step 4 – Record your findings on a daily basis and in-line with the Government’s advice
  • Step 5 – Review your assessment and revise it as necessary

Is there anything else we can do proactively?

Once the extent of the crisis starts to unfold naturally organisations will and should look at its insurance policies to understand how their risks are protected.
Now is the time to look at your policy and ask yourself the inevitable questions regarding liability and potential claims for damages from parents of pupils and staff if they believe that they have been unnecessarily exposed to risk. Having in place an updated risk assessment and policies could provide evidence to demonstrate that the school has adequate plans in place in the event of an outbreak and to avoid suggestions that the school has not undertaken reasonably practicable measures.

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About the Author
Kristine Scott, Partner, Head of Education Sector

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