HCR Law Events

26 May 2020

New guidance on re-opening secondary and senior schools from 15 June

On 25 May 2020 the DfE issued new guidance for secondary schools (including senior schools) on how they can re-open for year 10 and 12 pupils (years 10 and 11 for alternative provision schools). This followed the Prime Minister’s announcement the day before that these schools should plan to re-open for these year groups from the week commencing 15 June 2020.

The DfE is asking secondary schools (including senior schools) to offer face-to-face support to supplement the remote education of year 10 and year 12 pupils, which should remain the predominant mode of education during this term for pupils in these year groups.

The key advice is that schools should have up to a quarter of the total of year 10 and 12 cohort in school at any one time. Schools should include within this 25% vulnerable children and children of critical workers in years 10 and 12, who are still encouraged to attend full-time.

Where 25% of the year 10 or year 12 cohort is 15 students or fewer, then so long as a school has physical capacity and is able to meet the requirements on social distancing and minimising risk set out in the DfE protective measures guidance (see link below), the school may accommodate up to 15 students in the year group.

Schools are being asked to do this in addition to what they are doing presently, i.e. providing full-time provision for vulnerable pupils and children of critical works in all year groups. These year groups are not covered by the 25% above and they should be accommodated as currently. If currently in a hub, then schools are being asked to explore how to bring them back to their normal school, subject to risk assessments.

Practicalities

Schools should continue to refer to the previous DfE guidance on implementing protective measures in education and childcare settings which applies to both phases of the return on 1 and 15 June. It is available here.

The DfE is advising a range of approaches and actions which, when implemented, will create a safer environment where the risk of transmission of infection is reduced. Many of these will be familiar to schools from reading the previous DfE guidance, e.g. in relation to social distancing, hand washing, cleaning frequently touched surfaces often, and minimising contact and mixing between groups of pupils. In practical terms, this is likely to mean classes are no more than half their usual size (unless there is a larger space for a larger group). Some mixing is acknowledged as unavoidable when providing face-to-face time from subject teachers.

A key difference between this guidance and what is being asked of primary and prep schools is the possibility for secondary and senior schools to introduce rotas. Where rotas are used, secondary schools should avoid split day rotas within the same day (e.g. morning and afternoon rotas should not be applied). In addition, vulnerable children and children of critical workers in all year groups should still be encouraged to attend full-time and appropriate risk assessments should consider how this could be managed.

The guidance requires schools to ensure that no pupils are on the school grounds unless for agreed contact time or attendance as above.

Pupils travelling to and from school

When considering re-opening to year 10 and 12 pupils, the guidance states that schools should consider how these year groups travel to and from school, and how many will be travelling at the same time.

Schools should ensure that the use of public transport to travel to and from school is minimised as far as possible, and pupils should be encouraged to walk or cycle instead. Where it is totally necessary, this should not be during peak times. Schools should introduce staggered start and end times as appropriate to help achieve this.

Schools should also give clear messages to pupils about minimising the use of public transport and how to reduce the risks of transmission outside of school. They should consider the potential for broader social mixing outside school when deciding their approach and communicate with pupils about not socialising with each other in groups outside school.

Flexibility

The guidance is clear that schools have the flexibility to implement face-to-face support for year 10 and year 12 pupils in the way that best suits their circumstances, including considerations around staff availability and workload.

There may also be some pupils who would particularly benefit from more face-to-face support, such as disadvantaged pupils or pupils who have not been engaging in remote education. These pupils may attend more frequently than others, as long as schools ensure that only a quarter of the total year 10 and 12 cohort is in school at any one time.

The guidance is clear that other secondary and senior school year groups cannot attend at this time.

Independent schools that wish to depart from the DfE guidance, which is not mandatory, should carefully consider whether their insurance policy would cover them if they stepped outside it. There may also be resistance from staff, unions and parents in this regard.

Temperature checks – data protection considerations

We are aware that a number of secondary and senior schools are considering checking the temperature of pupils and staff when they re-open. Some primary and prep schools that are open already have this in place on a voluntary basis. As this involves the collection of health information, schools will need to be mindful of their data protection obligations with respect to this special category data.

The Information Commissioner’s Office (ICO) has created a coronavirus information hub on their website which includes a useful Q&A page for employers (including schools) here.

Data protection law does not prevent employers from taking the necessary steps to keep staff and the public safe. Neither does it prevent schools from checking the temperature of its pupils. For instance, the available lawful bases under data protection law for processing temperature check information on staff are likely to be:

  • Legitimate interests
  • Compliance with health and safety obligations under employment law.

The ICO stresses that these bases will cover most of what employers need to do, as long as they are not collecting or sharing irrelevant or unnecessary data. It may not be necessary, for example, to share exact temperature readings with others.

A key consideration for schools is transparency with pupils and staff about how and why information on temperature checks is being collected and shared. Parents may also need to be informed particularly where the temperature of younger pupils is being checked.

Where a check establishes a high temperature, this may be recorded by the school and lead to the individual (and others) being required to return home and self-isolate. Schools should therefore be clear about the decisions they will make with that information, and who the data will be shared with. There should also be a retention period set so that any information recorded is deleted when it is no longer needed. Giving pupils, parents and staff the opportunity to discuss any concerns with a named member of staff is recommended.

There is flexibility in how schools can take this forward. Schools can either add this information to their existing privacy notices (as it unlikely to be covered there presently) or send a separate communication to relevant individuals setting this out.

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Paul Watkins, Associate

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