HCR Law Events

6 May 2020

Life after lockdown – Staffing considerations for schools

As we enter week 7 of lockdown and the UK seems to be flattening the curve, we wait for an imminent announcement regarding the possible phased reopening of schools. Although the detail of how the lockdown will be lifted is not yet confirmed, there are a number of practical issues from a staffing perspective which schools will need to consider as part of any return.

We have considered some of the most frequently asked questions below.

Health and safety

How can schools prepare for reopening?

We strongly recommend that schools undertake a risk assessment exercise in good time to consider how best to approach reopening. Aside from complying with Government guidance on social distancing, every school will be different in how it operates post-lockdown. Schools should consider factors such as pupil numbers, class sizes, the layout of buildings and classrooms, transport, boarding arrangements and the provision of education.  In addition, there are likely to be a number of other factors i.e. the provision of hand sanitiser at entry and exit points of the school. The risk assessment will be a living document for some time and will need regular review as the days and weeks pass.

How should schools manage social distancing?

We are unsure of the detail of this yet but schools should follow Government guidance on social distancing at all times. We know that pupils will be returning to school on a phased return basis, which will make it simpler for schools to implement social distancing techniques.  That said, for young children, the concept of social distancing is likely to be impractical to implement in practice.  As part of any risk assessment, schools will need to consider matters such as the flow of pupils and staff in the school, a schedule for pupils to attend school on alternating days or different parts of the day (morning/afternoon), transport arrangements, seating arrangements, staggered break times, how many pupils/staff are allowed in one place (including bathrooms, kitchens, communal areas etc) at any one time, whether certain activities cannot be currently carried out safely, social distancing measures taped on the floor and visitor policies.

Should school staff be provided with PPE?

Schools should follow the appropriate Government guidance on PPE. There may be some staff for whom it may be more appropriate to provide PPE, for example, school nurses, or any staff that are involved in providing personal care. It is unlikely to be necessary for all staff and pupils to wear PPE, provided that schools are following social distancing requirements.

However, there may be some staff that are concerned about their safety (or indeed the safety of their families) and may wish to wear PPE whilst in school. We would recommend talking to these staff to understand their concerns in the first instance, with a view to seeing how you can best support them in school.

Staffing

Will all staff return to work at the same time? 

It is expected that this will be for each school to manage. From one of the latest statements from the Secretary of State, we know that schools will return on a phased basis over a possible period of months. This may mean that some pupils will not be returning to school until September. Whilst this is speculation at the moment, if this is the case, it is likely that schools will not require their full workforce to return all at once, particularly those who are in a support staff role.  For example, a school might not need its full complement of cleaners if all of the boarding houses are not occupied. Once plans for reopening have been issued, schools should consider (and keep under review) their own pupil and staff bodies and determine which staff they need in school and when.

What if staff are unable to return to work because they are shielding? 

Under the current Public Health England guidance, clinically vulnerable members of the population should shield themselves until the end of June. This may mean that certain members of staff are unable to return to work if schools were to reopen before the shielding period ceases. Schools must respect this as it is integral to the individual’s safety.

In some cases, shielding employees may be able to work from home, and schools should discuss this with the employee in question. Alternatively, shielding employees can also be currently furloughed under the Coronavirus Job Retention Scheme (the “Scheme”) (although the Scheme is currently scheduled to come to an end on 30 June).  We are hoping for an announcement in the next couple of weeks as to whether the option of furlough will be extended further.

There may also be members of staff that have children or dependents that are shielding which prevents them from returning to work for childcare reasons even if they themselves are not shielding. It is unlikely that wider members of the family will be able to help with childcare in the present circumstances. 

What about vulnerable or pregnant staff, should they return to work?

Schools should discuss concerns with vulnerable staff to determine whether they are comfortable returning to work. The school must take steps to address the risks for vulnerable members of staff (including those that are pregnant); this may include considering the provision of PPE. This should form part of a school’s risk assessment before reopening.

Vulnerable staff may be reassured that appropriate steps have been taken in line with Government guidance, and we recommend providing vulnerable staff with the opportunity to discuss any concerns they may have at the outset.

If appropriate, schools may decide that vulnerable staff can continue to work from home in the short term if possible.

What if staff are reluctant to come to work because a family member is shielding or is vulnerable?

Employees with vulnerable family members at home may understandably be concerned about returning to work after lockdown.

Schools have the option of furloughing staff whilst the Scheme remains in force, or alternatively, if appropriate, these staff may be able to work from home. Staff may also want to take some annual leave or dependents leave to assist them during the adjustment period. Schools should discuss any concerns with staff and seek to agree a mutually agreeable way forward.

What if staff have caring responsibilities that prevent them from returning to work?

Some staff may be unable to return to work as soon as planned if their children’s school or nurseries have not yet reopened. As we anticipate that schools will be reopening on a phased return basis, this may mean that staff have to work variable hours for the remainder of the term, or until schools return to normal for all.

As above, schools have the option of furloughing staff whilst the Scheme remains in force, or alternatively, if appropriate, these staff could work from home. Staff may also want to take some annual leave or dependents leave to assist them during the adjustment period. Schools should discuss any concerns with staff and seek to agree a mutually agreeable way forward.

How should we deal with a member of staff that is refusing to return to work?

Key to managing these issues is communication. Schools should take time to discuss concerns with the member of staff to determine if there are any particular vulnerabilities or risks that the employee is concerned about that could be addressed before they return to work.

Schools should also reassure staff that it is following Government guidance and has undertaken a risk assessment to ensure the health and safety of its employees, pupils  and all those who come on to school site.

Ultimately, staff have a contractual obligation to provide services to the school, and schools may seek advice on how best to enforce their contractual position.

Can we ask staff to self-declare Covid-19 symptoms?

We consider that this is possible, provided schools are clear as to the reason for the self-reporting, namely to protect the health and safety of others, and that they have adequate privacy safeguards in place. However, currently, schools cannot insist that this information is provided.

Can we continue to furlough staff once schools reopen? 

The Scheme is in place until the end of June, however there is scope for this to be extended. Schools are free to take advantage of the Scheme and furlough qualifying staff, as required, for the duration that the Scheme is available.

We recommend schools refer to the Government guidance (available here) and to our furlough FAQs guidance note (available here) in the first instance.

How should schools prepare for a rise in flexible working requests or requests for home working?

Flexible working requests must be dealt with in accordance with the statutory process. It is likely that there may be an influx of applications when schools reopen as staff have got used to working from home and in some cases, working different hours. Schools should have a flexible working policy and should follow this when considering any request for flexible working from their staff.

Applications for flexible working can only be refused if one of the eight prescribed grounds applies (for example, an inability to reorganise work among existing staff, or the burden of additional costs). If in doubt, schools should seek legal advice when an application is received and before making any decision.

How should schools address a reduction in workload?

Schools should continue to consider their financial viability and their staffing requirements in the usual way. Schools are likely to have carried out an assessment of finances at the start of the pandemic in order to determine whether redundancies needed to be made when schools were closed on Government instruction.

Schools should consider taking professional advice to consider their options. If workloads have decreased significantly, and are unlikely to pick up in the short term, perhaps due to a decline in pupil numbers, then redundancies or reducing pay and/or hours may be necessary. Alternatively, schools could continue to take advantage of the Scheme to save costs, or consider redeploying staff to busier areas of the school.

Should schools be providing specific support to employees who have been bereaved or are struggling with their mental health? 

As a minimum, schools should follow their usual processes for supporting the welfare of staff. Perhaps issuing a reminder to staff of the support available to them ahead of their return to work might be helpful.

What should schools do about annual leave when staff return to work? 

Our recent guidance notes on furlough cover the question of annual leave. As annual leave continues to accrue whilst on furlough, it is likely that schools will have support staff that will want to take their annual leave as soon as school reopens, which is likely to be very inconvenient for schools when it comes to arranging staffing.

Schools can require an employee to take statutory annual leave (5.6 weeks for full time staff) on particular days, provided it gives the employee the appropriate advance notice. Further information can be found here.

Provision of education

What if parents refuse to allow their children to attend school? Should we continue to provide remote learning?

It is likely that schools will have at least some children off site for the remainder of this academic year. In particular, children that are shielding and international students may be prevented from returning to school even if phased reopening does take place as anticipated. Schools will need to consider how best to provide educational provision to children that are not in school. The majority of schools are likely providing some form of remote learning whilst the school is closed to all but children of key workers and those who are considered vulnerable. This could be continued if this is in the best interest of the children, and the school. This will be a factor for the individual school to consider.

It may be that schools will need to consider a combination of classroom and online teaching in any event to manage the anticipated phased reopening. Schools will need to consider the approach that will best suit the needs of their pupils and staff during this time. Staffing issues surrounding how to manage teaching a class where some children are physically present and some are still at home (the hybrid approach) is an issue which each school should consider and will of course be subject to their own particular circumstances, staffing and resources.

Should we record live lessons for children off site?

We have recently published a guidance note which covers the key considerations for schools regarding recording lessons. This can be accessed here.

This note covers some of the issues which are likely to be considered as part of schools reopening. This note is correct as at 4th May 2020.

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About the Author
Kristine Scott, Partner, Head of Education Sector and Cheltenham Office

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