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HCR Law Events

18 January 2021

Lockdown III: Staffing Considerations for Schools

On 4 January 2021, the Prime Minister announced that all schools had to partially close from 5 January and offer remote learning until at least the February half term, as England moved into a third national lockdown. Only vulnerable children and the children of critical workers are allowed to attend schools for face-to-face learning, although early years settings (such as nurseries) will remain accessible.

Following the announcement, the Department for Education (“DfE”) issued guidance for all schools in England which they should follow during the national lockdown period (the “Guidance for Schools”). Schools will be familiar with much of the guidance, including the system of controls implemented since the start of the autumn term, but various sections have been updated to reflect the current circumstances. Schools should familiarise themselves with the guidance (in particular, the section on the ‘school workforce’).

This note is intended to act as a useful reminder to schools of the key staffing considerations during the lockdown period.   

This note is correct at the time of writing on 14 January 2021.

The School Workforce

During the national lockdown, the expectation is that everybody should work from home where possible and this is reflected in the Guidance for Schools. School leaders will need to determine the workforce that is required in school to support on-site learning for designated individuals and otherwise make arrangements for staff to work from home, where possible.

Remote working arrangements

What steps should schools take to facilitate remote working?

During the initial lockdown, schools (like all businesses) were forced to adapt so that employees (both academic and support staff) could, where possible, work remotely. Most schools implemented this very successfully by embracing new technologies, virtual learning and different ways of working. It is hoped that the previous methods of remote working can be implemented during the current lockdown. That said, there is a clear expectation that schools will facilitate a remote learning provision, which may well require additional software and equipment for certain members of staff (and children). Schools should ensure that all employees have the equipment they need to effectively perform their roles, and that they understand what is expected of them whilst working remotely. If they have not already done so, schools should establish when employees are required to “be available” for work, whether this is entirely flexible, or in accordance with school hours.

Consideration should be given as to how to manage workloads, supervision, performance and ensure effective methods of communication.

Schools should be mindful that their duty of care to employees will continue to apply regardless of their working location. This means that schools have an obligation to ensure that their employees are not at risk whilst at work and must take reasonable steps to ensure an employee’s health, safety and wellbeing – this includes working from home. As such, a decision to require employees to work from home should be documented as part of a school’s overall Covid-19 risk assessment. Whilst there is no general legal obligation on schools to provide the equipment necessary for homeworking, the Government encourages employers to take every step possible to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working, where possible. 

Thought should also be given to those employees who meet the definition of ‘disabled’ for the purposes of the Equality Act 2010. If reasonable adjustments have been put in place for certain employees on site, schools should consider whether it is possible and appropriate to replicate these within an individual’s home.

Some staff, understandably, find it difficult to separate work from their personal lives when they are working from home, particularly if they do not have a designated office space. Schools should therefore keep in touch with employees regularly, encourage staff to take adequate ‘rest breaks’ and maintain a healthy work/life balance.

With regards to pay, if staff are able to work remotely, they should, of course, be paid as normal. 

For information on the hosting and recording of online lessons during the pandemic, including the safeguarding and data protection considerations, please see our updated note.

‘On site’ working arrangements

How should schools address staffing in order to remain open for vulnerable children and those of critical workers?

During the initial national lockdown, most schools were successfully able to offer a high-quality educational provision to vulnerable children and those of critical workers by utilising skeleton staff.

As noted above, school leaders will need to consider the workforce that is required in order to support those children learning on-site. In doing so, schools may need to alter the way in which they deploy their staff and use existing staff more flexibly. Contracts of employment should provide scope for school leaders to require staff to work in order to fulfil this requirement, although this would need to be assessed on a case by case basis. Where changes to staff roles are necessary, these should be discussed and agreed with the individual concerned.

How should schools manage the risk to staff?

Schools must have appropriate risk assessments in place to ensure the health and safety of staff (and children) who are in school during the lockdown period and school leaders should explain to staff the measures they have put in place to reduce risks and involve staff in that process.

Schools should explore the provision of appropriate Personal Protective Equipment (“PPE”) for staff, particularly for those who are unable to practise social distancing due to the needs of the children with whom they are working.

Schools should discuss with staff the procedures to be followed to reduce the risk of catching or transmitting the virus (i.e. individuals should be advised to follow the measures set out in the ‘system of controls section’ of the Guidance for Schools). This includes continuing to observe good hand and respiratory hygiene and maintaining social distancing in line with the provisions as set out in the ‘prevention’ section of the Guidance for Schools.

Where there is a suspected or confirmed case of Covid-19, the procedures issued by the Government and relevant Public Health bodies must be followed at all times.

Staff should also be encouraged to express any concerns they may have around their particular circumstances with a designated individual so that these can be considered and addressed, where applicable.

Furlough

What support is available under the furlough scheme?

Most schools will now be familiar with the furlough scheme having utilised it at some point since the initial outbreak of the Covid-19 pandemic. However, in summary, the Coronavirus Job Retention Scheme (the “CJRS”) has been extended until the end of April 2021 to support businesses and individuals who are impacted by the disruption caused by the pandemic.

Under the extended CJRS, the Government will pay up to 80% of an employee’s normal pay for hours not worked (subject to a cap of £2,500 per month). Employers are not required to contribute to the wage costs for hours not worked but they are responsible for employers’ National Insurance contributions (“NICs”) and pension contributions and can “top up” employee wages above the CJRS grant at their own expense, if they wish to do so.

Employers have the flexibility to “fully furlough” employees (this means that the employee will not perform any work for the employer whilst furloughed) or make use of a “flexible furlough” arrangement (this means that an employee can work for any amount of time or shift pattern which can vary from week to week by agreement).

Further details on the extended CJRS are available here.

Can schools make use of the furlough scheme during their partial closure?

Yes, provided they meet the relevant eligibility criteria (as set out here).

Schools may wish to fully furlough certain staff (for example, those who are unable to work from home or where there is no work available). For others, where there is a reduced demand, a flexible furlough arrangement may be more appropriate. This may apply to staff working from home as well as those supporting the face-to-face learning provision on site.

It is recognised that most (if not all) teaching staff will continue to work during the partial closure of schools, either to facilitate remote learning or support the face-to-face tuition of vulnerable children and those of critical workers. That said, there may be circumstances where a furlough arrangement is required, for example where a member of staff has caring responsibilities. Schools are strongly encouraged to seek advice if considering this as an option.

What should schools do now?

We recommend that schools remind themselves of the details of the extended CJRS and consider which employees could be furloughed. Schools can then contact staff to seek their agreement to a period of furlough leave or a flexible furlough arrangement.

Furlough arrangements will need to be confirmed in writing. Although the Government guidance provides that employers will not require the written agreement of each employee to the proposed change in their contractual terms, as a matter of good practice and to mitigate the risk of potential employment law and/or breach of contract claims, we recommend that the written agreement of each employee is sought. 

Vulnerable staff

What is the position for clinically extremely vulnerable employees?

Following the reintroduction of shielding, the Government advice is that “clinically extremely vulnerable” individuals should stay at home and not leave the house, even for work purposes.

It is hoped that most shielding employees will be able to work from home, and schools should discuss this with the employees in question. In these circumstances, employees will receive their normal pay. Alternatively, shielding employees can be furloughed under the extended CJRS.

Schools will need to be mindful that there may also be members of staff that have children or dependents that are shielding. The current guidance is that those living with someone who is clinically extremely vulnerable can still attend work where homeworking is not possible. Naturally, these individuals may be concerned about the risk of transmission of the virus by working on site and these concerns should be discussed and addressed with them individually, where possible. 

School leaders and shielding staff should read and follow the Government guidance on ‘shielding and protecting people who are clinically extremely vulnerable from COVID-19’.

What is the position for staff who are clinically vulnerable?

Clinically vulnerable staff can continue to attend school where it is not possible to work from home. While in school they should follow the sector-specific measures set out in the Guidance for Schools to minimise the risks of transmission.

Staff morale, mental health and wellbeing

How can schools maintain staff morale and protect and promote health and wellbeing?

It is becoming increasingly evident that the Covid-19 pandemic (and measures taken by the Government to control it, such as school closures, lockdowns and social distancing measures) have had a significant impact upon the mental health of employees. Mental health issues can be difficult to spot and are sensitive to address with employees, which is exacerbated further when contact and methods of communication are limited.

Schools should keep a watchful eye on the mental health of their employees during this difficult time and look out for changes in behaviour or signs of difficulty coping. In these circumstances, it may be helpful to encourage individuals to speak to their GP and/or signpost employees to trusted sources of advice and guidance whether available online or via the school’s employee assistance programme. If an employee is too unwell to work, schools should be sympathetic to this and follow their sickness absence policies / procedures accordingly.

For some employees, a big source of anxiety will be the overwhelming practicalities of dealing with a further lockdown. Addressing those practicalities can reduce one source of anxiety enabling the employee to cope with others. An obvious area of difficulty is parents and carers trying to balance their work commitments with caring responsibilities. Discussions with employees about temporary flexible working arrangements can help significantly in this regard.

Taking a proactive approach to maintaining effective contact and communication will be key to monitoring staff morale and wellbeing. Bespoke communication channels may need to be implemented during this period, such as scheduled video calls; WhatsApp or other chat groups or forums.

If your team is normally sociable, think about how this can be replicated remotely. A Friday night team quiz or a lunchtime meet over a video call may not be as good as the real thing, but it can give an emotional lift to those missing the social side of the workplace.

Schools should ensure that staff who are furloughed, whether on a full or part-time basis, are included within social activities and informed of updates and developments as normal.

Disciplinary and grievance processes

The law and the Acas Code of Practice on disciplinary and grievance procedures (“Acas Code”) will continue to apply during the Covid-19 pandemic and, as such, schools should be mindful that the challenges presented by the pandemic will not permit them to depart from or fail to follow proper procedures.

Schools may be unsure about how to handle these internal processes whilst normal working practices have been disrupted and staff are working from home, self-isolating, on furlough or whilst social distancing measures are in place in the workplace. In recognition of this, Acas has published specific guidance on how to deal with Disciplinary and grievance procedures during the coronavirus pandemic (“Acas guidance”) and we recommend that schools familiarise themselves with the guidance.

Can and should schools start / progress disciplinary and grievance processes during the lockdown period?

Whilst there may be a temptation to postpone disciplinary and grievance processes until a return to normality, this may present difficulties in due course for a number of reasons. In particular, an unreasonable delay in carrying out a grievance or disciplinary investigation and procedure may amount to a breach of the Acas Code with the potential for a 25 per cent uplift to be ordered in respect of an award in Employment Tribunal proceedings.

In most cases, it is therefore likely to be in everyone’s best interests to progress and conclude such processes on a remote basis, where possible. That said, careful consideration should be given to the individual’s circumstances (such as health and wellbeing) and it is likely to be sensible to talk through options with those involved and decide a way forward.

There are obvious practical difficulties that may arise in undertaking disciplinary and grievance procedures during the lockdown period and schools may need to make adjustments to their normal procedures to allow for a remote process. For example, investigation meetings, interviews and hearings are likely to be more effectively conducted virtually (for example, by video call). In taking this approach, the Acas guidance emphasises that, in most cases, there will be no reason for video calls to be recorded and schools (and employees) should be mindful of the data protection implications of doing so. There may also be difficulties with the employees exercising their right of accompaniment (particularly if they are a member of a union and wish to be accompanied by a union representative) which may delay the process.

Schools should not use the current situation as an excuse to circumvent proper procedure. When faced with additional pressures and a remote process, it may be tempting to take shortcuts; however, it is important to ensure that the overall fairness of the process is not impacted and that schools do not act unreasonably.

Can employees on furlough still participate in disciplinary and grievance processes?

The answer to this question is likely to depend on the individual circumstances and we recommend that schools seek legal advice to determine whether it would be fair and reasonable to carry on with, or start, a disciplinary or grievance procedure while an employee is furloughed.

Acas takes the view that, provided participation is voluntary and takes place in accordance with current public health guidance, a furloughed employee can participate in such processes regardless of their role (i.e. whether s/he is the subject of proceedings; a chairperson or notetaker; an interviewee or witness; or a companion).

Our view is that the Acas guidance should be treated with caution because, when designated as ‘furloughed’, staff are not permitted to undertake any work for their employer that generates an income or provides a service. Whilst it is unlikely to be deemed “work” for the subject of the proceedings to attend meetings and hearings; for those facilitating and supporting the process, activities such as chairing a hearing, acting as a notetaker, witness or companion may well constitute providing a service to the school, and could therefore be categorised as “work”.

To mitigate the risk of a breach of the CJRS rules, schools could consider implementing a flexible furlough arrangement with any employees required to facilitate or participate in such processes and ensure that they are paid their usual wages during the period they are required

Redundancy and restructure processes

Schools should continue to review their financial viability and staffing requirements in the usual way and 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, redundancies or restructuring processes may be necessary.

Can schools commence or continue with redundancy and restructuring processes during the lockdown period?

Yes, but they will need to be mindful that obvious practical difficulties may arise in undertaking such process whilst affected staff may not be in school (whether as a result of remote working arrangements or otherwise), for example, special attention will be required when it comes to communicating with staff on furlough leave. Ideally, schools will have agreed with furloughed workers how they will keep in touch during the period of leave. However, if methods of communication have not been agreed, certain individuals may be hard to contact.

Unprecedented times will not be an acceptable excuse for poor practice and schools must be mindful of individual and collective consultation requirements. If considering collective consultation, they are likely to need to allow additional time and consider, in detail, the practical aspects of how to hold a meaningful consultation process.  For example, careful forethought and planning will be needed to ascertain how to conduct a remote ballot process with staff in order to elect employee representatives.

Is it unfair to make employees redundant while furlough is available?

Employees with two or more years’ service will have accrued unfair dismissal protection and, as a result, a school must have a fair reason to terminate the employee’s employment and follow a fair process prior to reaching a decision to dismiss  ‘Redundancy’ is a potentially fair reason for dismissal, but it must also be reasonable in the circumstances to dismiss the individual for that reason. There is an argument that it is unfair to make employees redundant when the Government-funded CJRS is available as an alternative.

However, furlough is not cost neutral for schools. Even if employees agree to reduce their pay to the amount of the furlough grant, schools needs to bear the costs of employer’s National Insurance Contributions, pension contributions, holiday pay top-ups and any other benefits (unless the employee has agreed to waive them).

It also remains uncertain whether it is contrary to the ‘spirit’ of the CJRS to use it purely to postpone redundancies that are inevitable.

In considering the fairness of any dismissal, an Employment Tribunal would look at all of the relevant circumstances, so the availability of the CJRS alone is unlikely to make redundancies unfair.

For these reasons, whilst it is important for schools to consider the availability of the CJRS, our view is that it is not necessarily unfair to make employees redundant when furlough is available. That said, schools should seek specific advice based on their particular circumstances.

Staff consultation processes

Can schools continue ongoing consultations regarding the Teachers’ Pension Scheme (“TPS”)?

Many schools are currently consulting with teaching staff over a possible withdrawal from the TPS, or were due to commence consultation this term. 

Whether it will be appropriate to continue ongoing consultations will need to be assessed on a case-by-case basis, subject to the needs of the school, and with regard to the point at which the school has reached in the consultation process. 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 meaningfully 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 partial closure.

In terms of instigating any new consultation process, where possible (taking account of the school’s financial position), from an employee relations perspective, schools may be better placed to wait before embarking on such a process. That said, we appreciate that in certain situations, the situation with Covid-19 has made the issue even more pressing and time sensitive and therefore it will be preferable to proceed.

What about ongoing TUPE consultations?

In respect of any acquisition or merger, it will remain important for schools to comply with their obligations under TUPE to inform and consult with affected staff. However, 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).

It is recognised that the coming weeks are likely to be difficult for schools and their staff but we are hopeful that the roll out of the Covid-19 vaccination will improve the situation in the near future and see us through to brighter times.

For specific staffing queries, please get in touch.

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About the Author
Hannah Wilding, Associate

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