Friday 12th June 2020

How do we manage staff who cannot or refuse to return to the school site?

 

Please note: schools should not use this article as a substitute for HR advice. We strongly recommend that schools speak to their HR providers regarding any staffing issues to assess individual circumstances and local guidelines.

 

As schools begin to reopen more widely, there are understandably some concerns regarding staff working on the school site. There are also logistical issues to be considered for certain individuals, such as childcare issues, living with clinically extremely vulnerable individuals, and being clinically vulnerable or clinically extremely vulnerable themselves.

 

Staff who cannot return

 

Staff showing symptoms of coronavirus (COVID-19)

 

Staff who are showing symptoms of coronavirus (COVID-19) are entitled to Statutory Sick Pay (SSP) as normal, and schools should follow their usual sickness process and provide access to sick pay in the normal way. This also applies to staff who are advised to self-isolate for 14 days as a result of being in contact with someone who has tested positive for the virus, or a member of their household is displaying symptoms of the virus.

 

Clinically vulnerable staff

 

For individuals who are considered clinically vulnerable, schools should conduct risk assessments on a case-by-case basis. Staff in this group should be given a lower-risk role within the school if it is deemed safe for them to return, e.g. in a place where social distancing can be adhered to.

 

If no roles within the school are appropriate, staff in this group should be supported to work from home, where possible. In these circumstances, staff should receive full pay. If working from home is not possible, schools should consider other types of leave in certain circumstances, for example: unpaid, annual leave or sick pay.

 

Extremely clinically vulnerable staff

 

Extremely clinically vulnerable staff will have received a letter from the government advising them to shield. Staff in this group should work from home on normal pay.

If staff in this group are unable to work from home, schools could consider paying normal sick leave entitlement.

 

Staff who live with a clinically vulnerable or extremely clinically vulnerable individual

 

Staff who live with someone in the very high-risk group should stringently follow guidance on social distancing but are not required to shield themselves. Schools may choose to offer the safest on-site role with a risk assessment, or allow staff to work from home, if possible. If neither option is possible, annual leave, unpaid leave, dependants leave and parents leave could be allowed.

 

Staff looking after dependants

 

Staff who cannot return due to looking after dependants could be supported to work from home. If this is not possible, unpaid leave, dependants leave, annual leave or parental leave could be considered.

 

As part of the Employment Rights Act 1996, staff are entitled to a ‘reasonable’ amount of time off work to look after dependants. The term ‘dependant’ is defined as a spouse, civil partner, child, parent or other person living in the same household (excluding tenants and lodgers).

 

Staff are able to take time off school:

  • To provide assistance on an occasion when a dependant falls ill.
  • To make arrangements for the provision of care for a dependant who is ill or injured.
  • Because of the unexpected disruption or termination of arrangements for the care of a dependant.
  • To deal with an incident involving your child which occurred unexpectedly in a period while they were at an educational establishment.

 

Staff who do not want to return due to concerns

 

Staff who refuse to return to work for fear of catching coronavirus should be listened to, without pressure to return. Depending on the circumstances, these staff may not have a right to full pay. In time, if there is no agreement to return to school despite measures taken and evidence of the school acting reasonably, schools could consider disciplinary action as a very last resort.

 

Each instance of a member of staff refusing to return to work should be considered on a case-by-case basis, and any health and safety concerns should be taken very seriously, and advice should be sought.

 

Staff members who do not have concerns for health and safety upon return to work should be reassured that the school is controlling risks. Unpaid leave is advisable in the short term, but in time, disciplinary action may be appropriate.

 

Pregnancy

 

Employees who are pregnant can return to work; however, schools should offer the safest available on-site roles with a specific risk assessment conducted on a case-by-case basis. If there are no on-site roles available, staff should be supported to work from home.

 

If the nature of the pregnant staff member’s role cannot be carried out from home and there is no safe on-site role, or there is a safe on-site role but they reasonably refuse it, they can be suspended on full pay.

 

 

Bibliography

Browne Jacobson LLP (2020) ‘Staffing decisions that need to be considered when opening your school’

DfE (2020) ‘Coronavirus (COVID-19): financial support for education, early years and children’s social care’ <https://www.gov.uk/government/publications/coronavirus-covid-19-financial-support-for-education-early-years-and-childrens-social-care> [Accessed: 4 June 2020]

Edapt (2020) ‘Coronavirus: Can Teachers Refuse To Attend School?’ <https://www.edapt.org.uk/support/knowledge-base/coronavirus-can-teachers-refuse-to-attend-school/> [Accessed: 4 June 2020]

NEU (2020) ‘Coronavirus guidance and FAQs’ <https://neu.org.uk/advice/coronavirus-members#sick-pay> [Accessed: 4 June 2020]

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