Back to school after lockdown 3 – Q&A

The news that pupils would be returning to school on 8 March threw up lots of questions and concerns from school staff, whether those working in the classroom, office, reception or school grounds.

Below, we’ve focused on the most common questions asked of us on this issue in recent weeks. The advice we offer here is based on the Government’s latest guidance for schools at the time of writing, but schools are advised to keep abreast of frequent changes and developments in these guidelines.

All schools are under a general obligation to provide a safe working environment for staff, and in current circumstances, they should:

1) Ensure their risk assessment is kept up to date, specifically focusing on the risks presented by Covid-19; and

2) Follow a system of controls based on that risk assessment – in relation to both infection ‘prevention’ and ‘response to infection’ – in order to maintain a safe working environment.

Most schools prepared advanced systems of controls during the first lockdown, and will have updated these systems in relation to the recent return to school.

How should schools respond to workers anxious about returning in person?

If someone is particularly anxious, communicate sensitively and clearly with them to carry out risk assessments. Explain the safe working practices in place to keep staff safe, and make any sensible changes to accommodate their concerns. Be flexible, and keep records.

Some people’s anxiety can become so severe that it approaches the definition of disability under the Equality Act. In this case, it is advisable to obtain a medical report or occupational health assessment. Individual circumstances should be built into risk assessments, and reasonable adjustments considered to enable the person to do their job. This could include adjusting their role or allowing them to work from home where possible.

Should clinically extremely vulnerable (CEV) staff return to school?

Guidance states that CEV staff should not return to school – they should be supported and allowed to work from home, being paid according to their normal terms of employment.

Schools should also consider allowing those living with someone who is CEV to work from home if possible, as there may be a risk of discrimination by association. Where working from home is not possible, individual risk assessments should be carried out to minimise any potential risk of transmission both in school and at home.

What about clinically vulnerable (CV) staff?

CV staff can continue to attend school, though schools must maintain a robust system of controls to minimise risks, and may decide to exercise flexibility on a case-by-case basis.

What about pregnant staff?

Schools have additional responsibilities in relation to pregnant staff, and must do a pregnancy-specific risk assessment for each pregnant staff member.

The safest option for pregnant staff is to work from home, but where this isn’t possible due to the nature of their role, schools should consider whether they could be re-deployed to a role that enables them to work from home. If neither option is possible, schools should document the reasons why, alongside evidence both of a thorough risk assessment and of comprehensive measures in place to keep pregnant workers safe.

Make sure to consult the pregnant member of staff during this process, so that it is clear the school has done all it can to alleviate that staff member’s concerns. If safety worries continue, of if the staff member is strongly resisting their return to face to face duties, the school can suspend that staff member on full pay, for reasons of safety under maternity laws. Retain careful records of all decision-making, risk assessments and discussions with pregnant staff.

Some schools are allowing pregnant teachers to run classes remotely from home, with face-to-face classroom support from teaching assistants. Pregnant women are considered clinically vulnerable – and in some cases, due to other health conditions, they may be considered clinically extremely vulnerable – so it is important to consider this as part of each individual teacher’s risk assessment.

Be aware that commentary from the Equality and Human Rights Commission suggests that requiring pregnant employees to continue to work in frontline roles could amount to indirect discrimination.

What about staff who refuse to be vaccinated?

There appears to be little schools can do to prevent staff from working just because they have refused the vaccine. Most staff have not yet been offered the jab, and schools are not yet in a position to insist that all staff are vaccinated.

As the vaccination programme develops, we anticipate more government guidance on the issues of unvaccinated staff and pupils, and we advise that this guidance is followed properly if and when it arrives.

If a staff member does refuse the vaccine, schools should feel comfortable asking them why. If their reason is good – an allergy or other condition are examples of good reasons – then it could be discriminatory to prevent them from coming to work. For example, preventing a member of staff from performing their role based on their age, or an actual or perceived medical condition, may constitute unlawful discrimination.

Where there appears to be no good reason, schools could argue that as part of their duty of care towards that member of staff, they are concerned they may be exposed to the virus, and therefore at even greater risk – since they have not been vaccinated. This may seem counterintuitive at a time when everyone is reassuring staff, pupils and parents that schools are safe, but certain schools may have particular concerns in this area.