HCR Law Events

13 August 2020

The Wider Re-Opening of Schools: Staffing Considerations

This article appeared in the Bursars’ Review in the Summer 2020 edition.

The wider re-opening of schools will, for most, mean a complex period of transition for governors, staff, pupils and parents, with no single, “one size fits all” approach.

This note focuses on the staffing considerations and explores a number of practical issues which schools may wish to consider, as well as looking ahead to the academic year 2020/21.

Health and Safety

For as long as the threat of infection from Covid-19 remains, schools will have to perform a balancing act between safeguarding the health risks employees face in the workplace as a result of potential exposure to the virus and the safety risks that new working practices may present.

As an employer, schools are responsible for the welfare, health and safety of their employees, so far as is reasonably practicable. With this in mind, schools should have (or will have) conducted a risk assessment(s) before their wider re-opening on 1 June or subsequently  and, in doing so, directly addressed the risks associated with coronavirus in order that practical and sensible measures could be put in place to protect staff (as well as pupils and visitors) on site.

As part of this risk assessment, schools should have considered the following:

  • Clinically extremely vulnerable employees

For such period as it remains the Government’s advice that “clinically extremely vulnerable” individuals should “shield” (i.e. stay at home and not leave the house), it is likely to be a breach of an employer’s health and safety duty if it were to insist that such individuals return to the workplace. Since individuals within this group may be classified as “disabled”, it may also be discriminatory for schools to insist on their return or place them at a detriment if they refuse.

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 furloughed under the Coronavirus Job Retention Scheme (the “Scheme”) whilst that remains an option.

Schools will need to be mindful that 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.

  • Vulnerable employees

Schools must continue to take steps to address the risks to vulnerable members of staff (including those that are pregnant) and protect their health and safety. If appropriate, schools may continue to allow vulnerable staff to work from home in the short term, if possible.

  • Personal Protective Equipment (“PPE”)

With regard to PPE, schools should continue to follow the appropriate Government guidance. Whilst it is unlikely to be necessary for all staff to wear PPE (provided social distancing requirements are followed), there may be some staff for whom it is appropriate (for example, school nurses or any staff that are involved in providing personal care). Schools with international pupils are likely to need to address concerns surrounding PPE, in particular if the local government advice differs to the UK.

We recognise that staff are likely to be apprehensive about their health and safety when at school. Honest, transparent and clear communication will be important to ensure the necessary buy-in of staff to make the wider re-opening of schools a success. Schools will need to take staff with them on the next stage of this journey.

Staff Health and Wellbeing

The pandemic has, to a greater or lesser degree, likely had an impact on the health and wellbeing of almost everyone (whether physically and/or mentally). Some staff may have contracted the virus; others may have experienced illness or a bereavement within the family or close friends and some might have suffered from anxiety or social isolation. Staff may also have been impacted by the effect the pandemic has had on pupils. As such, staff may need time to adjust following the easing of the lockdown and upon their return to work.

Open communication and the provision of support for staff will be key. As a minimum, schools should follow their usual processes for supporting the welfare of staff during this phase of transition. This may include reminding staff of any employee assistance programme that may be available. Schools will also need to carefully monitor their employees and check for changes in behaviour or signs of difficulty coping.

Flexible Working

Until the pandemic, home working within schools was, in our experience, fairly unusual. Following the partial or complete closure of schools in March, schools were forced, like all businesses, to adapt so that employees (both academic and support staff) could, where possible, work remotely. Most schools have done this very successfully, embracing new technologies, virtual learning and different ways of working.

Whilst some staff are likely to be eager to return to work on school site as soon as possible, others may have become somewhat accustomed to their “new normal” and the benefits associated with the flexibility of home working. We anticipate that schools may find employees who are reluctant to return to working their “normal” school hours.

It is likely that there will be an influx of applications for flexible working, whether on a temporary or permanent basis, when schools reopen. Such requests must be dealt with in accordance with the statutory process and schools should have a flexible working policy, which they follow, when considering a request.

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 upon the school). Having said this, it is possible that schools are now able to consider such requests in light of experiences during the pandemic and with the knowledge of what works in practice as well as what does not. If in doubt, schools should seek legal advice when an application is received and before making any decision.

Remote Working

Since 16 March 2020, employers have been encouraged to facilitate employees working from home where possible (in particular, any vulnerable employees or those considered to be “clinically extremely vulnerable”). There will be a shift in emphasis to get staff who are well, back to pre-pandemic working patterns to a certain extent.

For those continuing to work remotely, consideration should be given as to how to manage workloads, supervision, performance and effective methods of communication.

Schools should be mindful that their duty of care from a health and safety perspective will continue to apply in respect of remote/home working arrangements. As such, a decision to require employees to work from home should be documented as part of a school’s overall risk assessment to be carried out in respect of Covid-19.

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. Schools should also encourage staff to take regular “rest breaks” and maintain a healthy work/life balance.

Strategic Workforce Planning

The pandemic has already had a significant impact upon the independent education sector and the recession which is expected to follow, will likely mean a period of change (and challenge) for schools. Many, if not quite all, schools have reduced fees for the summer term 2020 and are carrying out financial forecasting for the academic year ahead taking into account the consequential economic turbulence (which is predicted to persist for some time) and the possible detrimental impact on pupil numbers. Fewer families able to afford independent education will mean fewer pupils with a direct impact on school income.

Schools will need to review their financial viability and, in turn, their staffing requirements. Schools may have carried out an assessment of finances at the start of the pandemic in order to determine whether restructures and/or redundancies were necessary when schools initially closed on Government guidance. It is likely that schools have now looked ahead as to what steps they will need to consider to ensure their workforce fits their needs in both the short and long term.

If workloads have decreased significantly and are unlikely to pick up in the short term, restructures, redundancies or a reduction in pay and/or hours may be necessary. If following that route, schools must be mindful of individual and collective consultative requirements. If considering collective consultation, schools are likely to need to allow additional time if staff are not in school (whether remote working or otherwise) and consider, in detail, the very practical aspects of how to hold a meaningful consultation. For example, conducting a ballot remotely with staff to elect representative needs forethought and planning.

Alternatively, schools could, whilst the option of furlough is available until the end of October, continue to use furlough funding as a way of mitigating the financial impact of the pandemic. Schools will need to be mindful that employees can no longer be furloughed for the first time and specific rules now apply in respect of how many staff can be furloughed at any one time. From August, as schools will have to contribute to furloughed salaries, the cost-savings will be more limited. However, schools do now have more flexibility over their furlough arrangements and, with the written agreement of staff, can benefit from ‘flexible furlough’. Further details on the changes to the Scheme and ‘flexible furlough’ are available in our article ‘Furlough: what is changing and when?’ which can be accessed at www.hcrlaw.com.

In some circumstances staff may be willing to take unpaid leave (particularly if this assists with childcare or caring commitments).

Schools may also need to consider removing and/or changing certain staff benefits. If a school has been considering whether to remain an accepted school for the purposes of the Teachers’ Pension Scheme (“TPS”), the pandemic might well influence whether they ultimately remain in the TPS or determine that the cost is prohibitive.

In managing the mounting financial pressures, schools will inevitably have to make some difficult decisions from a staffing perspective and communication with staff will be crucial. Schools should, where possible, be honest and transparent with staff in respect of the difficulties they face and their intentions.

Short and Long Term Impact

In light of the future financial pressures schools will be under, any staff remuneration policy from September 2020 will need to be considered carefully; to ensure compliance with any policy and/or contractual requirements, as well as consideration as to whether to mirror the State sector. You may recall that in January 2020 government plans were unveiled for later this year which heralded an increase in starting salaries for teachers, designed to increase recruitment and improve the status of the profession. At the time of writing, there has been no indication that they will not.

We may see schools continuing to strengthen their virtual provision, if that has been successful for them. We may also see some schools offering a hybrid classroom experience with a mix of virtual and in-class learning.

Without knowing how Covid-19 intends to behave in the coming months and year, schools must prepare for a variety of outcomes. Schools are likely to need a stable but flexible workforce that is able to adapt. What we can say is that there will be change ahead, some turbulence and opportunities, and schools will need to take their staff with them if they are to succeed. The way in which schools have responded to the pandemic to date has been inspirational, with a real focus on teaching and learning. We have no doubt that there is more to come.

Kristine Scott, Partner and Head of Education, and Hannah Wilding, Associate, in the Employment team at Harrison Clark Rickerbys both specialise in advising schools on employment matters. Kristine can be contacted on kscott@hcrlaw.com and Hannah can be contacted on hwilding@hcrlaw.com.

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

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