Schools are facing an unprecedented challenge following the outbreak of the Coronavirus in the UK. With many schools operating with skeleton staff on site, and only the pupils of key workers and those that are considered vulnerable physically attending school, schools have had to adapt quickly, and consider how best to provide educational provision for their pupils from the safety of their own homes. For many independent schools, this includes providing online lessons, either live via a hosting platform such as Zoom, or Microsoft Teams, or by circulating pre-recorded lessons to their pupils.
We are aware that the National Education Union (NEU) has published guidance to its members that suggests that delivering online lessons should not be a routine expectation for teachers whilst schools are closed.
It is our view that schools are able to provide online education, and to insist that their staff participate, provided that appropriate safeguards are put in place, and the request is reasonable.
On 19 April 2020, the DfE published guidance for schools on managing safeguarding procedures and remote learning during the Coronavirus pandemic. We have produced a note summarising the new guidance, which can be accessed here.
The key point is that whilst there is no expectation that teachers should live stream or provide pre-recorded videos, schools should consider the approach that will best suit the needs of their pupils and staff during this time. For independent schools, where parents are paying for the provision of education for their children, it is more likely to be considered necessary and appropriate to provide an alternative educational provision for their pupils that is more akin to classroom style learning whilst the school remains closed. This will be particularly important for schools with international students who will likely be living in a different time zone.
Independent schools also provide considerable pastoral support to their pupils, and “face to face” distance learning will allow schools to continue this whilst pupils are off site.
For most schools, online learning is a relatively new concept, and it is of paramount importance that schools seek to protect their pupils and staff when providing remote education. The starting point should be for staff to follow the principles of the school’s staff behaviour policy (or code of conduct). If staff will be required to teach lessons, or to communicate with pupils and/or parents from home, staff should be reminded that they should maintain professional standards (for example, in relation to their dress, language, email contact, and professional boundaries). When broadcasting or recording, staff should be mindful of what is displayed in the background. This is important to protect both pupils and staff.
The DfE guidance also emphasises the importance for schools to consider how best to approach its safeguarding procedures online. This includes a requirement for schools to update their safeguarding policies to set out any interim arrangements in place to keep children not physically attending the school safe, especially when they are online, and to identify how concerns about these children should be progressed. We have provided a note on this which may be accessed here.
With respect to the actual provision put in place, schools should carry out a risk assessment to determine what arrangements are most appropriate for their setting to support safe remote learning, and in terms of providing pastoral care to pupils. Factors to consider when carrying out such a risk assessment includes the age and content of the learning, the needs of any vulnerable pupils (including those with SEND) and the risks arising from the format/type of the remote provision proposed.
Should lessons be recorded?
The DfE guidance on safeguarding and remote education during the Coronavirus pandemic signposts schools to resources on safe online education (see above). The DfE’s interim safeguarding guidance published on 27 March 2020 (available here) also refers schools to third party guidance from the UK Safer Internet Centre on safe remote learning and the London Grid for Learning on the use of videos and livestreaming. A link to the latter is here. This guidance covers 20 safeguarding considerations for lesson livestreaming – recording lessons being one of them. Recording a live lesson is just one of a number of measures that can be considered by schools as part of their risk assessment. Other options include using school registered accounts, auditing the settings on who can start or join the stream/video, conducting it in an appropriate room with appropriate clothing, and having another member of staff or adult present.
To protect both the pupils and the staff delivering lessons, it will be very important for schools to ensure that there are very clear reporting routes in place so that pupils (and indeed staff) can raise any concerns whilst online. As well as reporting routes back to the school there should also be signposting to age appropriate practical support, not to mention clear guidance for staff which would normally be contained in a school’s IT and staff behaviour policies. This should be included in the school’s interim safeguarding policy.
If a school decides to record online sessions following a risk assessment, it is understandable that teachers may be concerned that they could be judged or apprised on their performance, particularly as the concept of delivering online sessions is likely to be new to the majority of staff. Schools should make clear to staff the purpose of recording lessons and the purpose for which they will be used.
Data protection considerations
If schools record live lessons or ask teachers to pre-record their lessons, they are likely to be capturing personal data on the individuals participating in those lessons. There may also be personal data recorded on non-participants if, for instance, comments are made about others during the lessons. As data controllers of this additional personal data, schools will need to consider and meet their obligations under data protection law including compliance with the seven data protection principles under the GDPR.
It is crucial that schools review their privacy information for teachers (and pupils, if their personal data is also captured) to determine whether it takes into account recording of lessons. Updates or additional communications may be required particularly where this is being introduced for the first time. Where communications are required, schools may wish to email relevant staff with information on how their data in these recordings is being handled and protected; this may prove reassuring to them. We suggest referring to any communication with this privacy information as a temporary supplement or addition to the Staff Privacy Notice (which can also be signposted to at the same time). Alternatively, some schools may prefer to update the Staff Privacy Notice itself before letting staff know and making it accessible to them.
Whilst teachers may feel stressed about this new way of working and may have concerns over how the recordings will be used, this should be considered in the light of the exceptional circumstances schools find themselves in, and the changes that are required to continue to educate pupils. Where recordings are considered necessary they are likely to be limited to the subject-matter of the lessons that they would be usually required to teach. Recordings made in advance of circulation can also be reviewed by teachers before they go live, so that any content they prefer not to include can be deleted or re-recorded. Other measures can also be put in place to ensure personal data of teachers is protected, for instance:
- Guidance: Teaching from home is different to teaching in the classroom. Guidance should be provided to teachers on how to record their lessons in a professional manner which should accord with the school’s existing staff behaviour policy (or code of conduct) as set out under “safeguarding” above.
- Purpose limitation: It is understandable that teachers may be concerned that they could be judged or apprised on their performance, or that parents or pupils may more easily complain about their teaching. They are likely to need reassuring on what these recordings would be used for. As is the case with teaching in the classroom, schools cannot guarantee that parental complaints will not be made, however, staff can be reassured that any complaint raised about a teacher would take into account, where relevant, the exceptional circumstances all schools are faced with.
- Data minimisation: The recordings should only contain what is adequate, relevant and limited to the subject-matter being taught and should not contain unnecessary personal information or controversial opinions or comments that may cause offence. This will ensure the data held by the school remains professional in nature.
- Storage limitation: Schools should not retain the recordings for longer than necessary. If the recordings are only intended for use during the coronavirus pandemic, this can be made clear to staff and should be deleted after a short and reasonable period of time. Schools may find it helpful to consider their existing data retention periods in this regard.
- Security: Appropriate security measures should be put in place to ensure the confidentiality, integrity and availability of the recordings. IT colleagues may wish to review the security of how teachers upload their recordings and also how pupils access them. For instance, recordings could be put on a platform which does not allow them to be downloaded onto students’ personal devices, and the recordings should only be accessible by pupils via a registered account.
- Support: This is likely to be a new way of teaching for many teachers and they may need support in getting familiar with it. Schools should be clear about who they can go to if they have any questions or concerns about recorded lessons.
- Review: It may be reassuring to staff if the school periodically review these interim arrangements to ensure they are working as intended, so that changes can be made promptly if necessary.
In law, employees have a duty to obey the lawful and reasonable orders of their employer. This is an implied term of their employment contract. What this means is that an employer can insist that an employee performs a particular duty or instruction, provided that the instruction is reasonable in the circumstances, and is not wholly inconsistent with the terms of their employment contract. By way of example, it is highly unlikely within the education sector that an employment contract would dictate that teaching duties must take place in person.
It is our view that, provided schools put in place appropriate safeguards for staff in line with the DfE guidance set out above, schools are clear in their expectation for appropriate behaviour from their staff, and that staff are reassured what the recordings will be used for,, it is our view that it is likely to be reasonable for schools to require their staff to deliver online learning.
We would always recommend communicating transparently with staff to explain the reasons why it is necessary to deliver education in this way, for your particular school. Reminding staff that this is an unprecedented time, and that these arrangements are only temporary, will hopefully be reassuring.
If schools are unsure whether their intended alternative provision is appropriate, we recommend that they take legal advice before taking steps to implement arrangements.
Harrison Clark Rickerbys
23 April 2020