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FAQ's: Impact of regional tiers on schools and colleges

The national lockdown ends today in England and is replaced by three regional tiers which restrict what people can do and which businesses can re-open. The government has updated its guidance for both schools and colleges to reflect changes in the approach educators need to make. 

Our FAQ's provide answers to a number of questions our education clients have asked about the new tier system, staffing concerns in the run up to the Christmas holiday and health and safety issues.

1. Can we ask staff members who are clinically extremely vulnerable to return to work?

In England, the shielding programme has paused and many people who are clinically extremely vulnerable will be able to return to work. Government guidance states that all staff can continue to attend their school or college at all local restriction tiers. It then goes on to say that 'under tier 3, staff and employers may wish to discuss flexibilities that support clinically extremely vulnerable staff, such as staggered start times to reduce travel during rush hour'. It's not clear whether the reference to tier 3 applies to the region they live or the region they work. 

There are two exceptions where clinically extremely vulnerable staff won't be expected to return to their workplace: 

1. Where shielding has been re-introduced. Updated guidance suggests that this will apply to some, but not all, tier 3 areas - and only if the Chief Medical Officer deems this necessary.

2. Where someone has received a new shielding notice.

Anyone who is told to shield should remain at home. Our previous blog  explains what options you have if a member of your staff is expected to shield after the lockdown ends and can't work from home.

Before you ask an extremely vulnerable member of staff to return to work, you must undertake an individual risk assessment to identify all potential risks to their health posed by coronavirus and look at the steps you can take to reduce these to the lowest possible level. Even if you did this prior to the second lockdown, we suggest that you re-evaluate risk assessments for every member of staff who is extremely vulnerable.

2. What's the best way to respond if a clinically extremely vulnerable member of staff won't return because they are worried about their safety?

Although, rates of infection have fallen by around 30% during lockdown, many vulnerable employees are still extremely nervous about returning to their school or college, particularly as there's no published data which sets out, for each week since September, the numbers of teachers and support staff who have tested positive, have been hospitalised or have died from coronavirus.  

Employees are protected if their workplace poses a serious and imminent threat to their health. Under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment (such as being suspended or having their pay deducted) or being dismissed for exercising their right to leave their workplace. 

To be protected, the employee must have a 'reasonable belief' that their workplace poses a serious and imminent threat to them, or to others - including members of the public and their own families. Anyone who has one of the medical conditions that makes them extremely vulnerable to becoming seriously ill or dying from coronavirus is likely to be able to establish a reasonable belief in this context. Plus, until clinically extremely vulnerable people are vaccinated against Covid-19, the risks are still high - a point made by the National Education Union a few days ago in a letter to the government. 

Therefore, even if you are convinced that your workplace is safe, you should listen to concerns raised and try and agree a way forward. 

3. Should we allow anyone who has been told to remain at home because of their health problems to return to work?

Anyone who can't work from home and wants to return to their workplace can do so provided it's safe. Before you agree to allow anyone who has been told to shield to return to work, you need to make sure they understand the risks (which are potentially very high at the moment). You must also undertake an individual risk assessment and offer them the safest possible job (with their consent). You'll also need to make sure that there are no exclusions in your employers' liability insurance policy that will invalidate any claim against you if they contract coronavirus at work.

Don't forget - you can't exclude liability for personal injury. Therefore, even if your employee agrees to sign a disclaimer, it won't help you to defend a claim if they do become ill or die.

If you don't think it's safe for them to return to work, you can turn down their request. However, if they are salaried, you will usually have to pay them in full because they are ready, willing and able to work.

4. Do we need to take any special steps to protect those who are vulnerable?

Government guidance for schools and colleges hasn't been altered since the lockdown. Clinically vulnerable staff can continue to attend school/college but should follow the sector specific measures outlined in the schools and colleges guidance to minimise the risks of transmission.

This includes taking particular care to observe good hand and respiratory hygiene, minimising contact and maintaining social distancing. It also recommends that adults should continue to take care to socially distance from other adults including older children and adolescents.

Pregnant women are in the clinically vulnerable category and are generally advised to follow the above advice, which applies to all staff in schools/colleges. More guidance and advice on coronavirus (COVID-19) and pregnancy is available from the Royal College of Gynaecologists. 

Once you are aware that someone is pregnant, breastfeeding or has given birth within the last six months, you must check your workplace risk assessment to see if any new risks have arisen and take appropriate action to reduce, remove or control them. In the context of Covid, we recommend that you undertake individual risk assessments as the employee may have other risk factors you need to consider which make them vulnerable to becoming extremely ill or dying from Covid.

5. Some members of staff have asked us to move to remote learning for all students in the run up to Christmas so that they can enjoy Christmas with their families without worrying about whether they have contracted Covid. What's the best way to respond?

The last day of term for many schools and colleges is Friday 18 December - just five days before the time limited change to social restrictions starts (23 - 27 December). Many teachers and other support staff hoped that they could work from home in the run up to the Christmas break to minimise the risk of contracting Covid-19 and/or passing it on to people in their 'Christmas bubble'.

However, new government guidance has made it clear that schools and colleges should not change their Christmas holidays or close early and has advised pupils to continue to attend their school or college until the last day of normal term time. 

 6. What options do we have if staff ignore government guidance about 'Christmas bubbles' or advice about socialising? 

Employees are under a duty to take reasonable care of their own health and safety and that of other people, and to co-operate with you to ensure that your rules are complied with. Many schools and colleges have coronavirus policies that inform staff that disciplinary action could be taken against them if they breach rules on social distancing and self isolation. It's a criminal offence to allow anyone who has been told to self isolate to return to their workplace and you must send them home. But, the extent to which you can restrict what your staff do in their own time, away from their workplace, is limited. Generally, you'll only be able to suspend or discipline someone if you have actual evidence they have broken the laws that apply where they live and you can show that allowing them to return to work will place other members of staff or pupils at an increased risk. Take advice if you're not sure. 

We recommend that you remind all of your staff ahead of the Christmas break that you expect them to follow government guidance on socialising which applies to the tier in which they live and the time limited rules that apply to 'Christmas bubbles'.

7. We are opening windows to help ventilate our classrooms but some of our staff have complained they are too cold. Are there any legal restrictions about minimum temperatures?

The government advised schools and colleges to ventilate their buildings to help reduce the risk of spreading coronavirus by aerosol transmission. Many have done so by keeping windows and doors open during classes. Whilst that was okay in the autumn, the outside temperature has now dropped and, most days, is below 10 degrees celsius. 

The Workplace (Health, Safety and Welfare) Regulations 1992 Approved Code of Practice suggests the minimum temperature in a workplace should normally be at least 16 degrees celsius unless the work involves rigorous physical effort. This temperature isn't an absolute legal minimum but employers do have a duty to determine the lowest temperature that provides 'reasonable' comfort to their staff. This means you should have a process in place to regularly check temperatures in different parts of the building. 

The government has suggested that schools and colleges should crank up the heating to compensate for the drop in temperature (which will significantly increase energy costs). You could also relax your dress codes for staff and pupils and allow them to wear warmer clothes such as coats and fingerless gloves.

You will also need to undertake individual risk assessments for any member of staff who is clinically extremely vulnerable or clinically vulnerable to make sure that working in a cold environment doesn't exacerbate any medical conditions they have. If it does, you may need to consider what adjustments you can make to ease their discomfort.  

Our Coronavirus updates

We're working hard to keep you up to date with legal developments around Coronavirus. We've set up a portal which includes lots of helpful articles and advice to help you.

If you have a query, that we haven't answered, please contact us.