Education Matters Forum Webinar: Lockdown 2.0 and the new regulations

Education Matters Forum Webinar: Lockdown 2.0 and the new regulations was held in conjunction with Kreston Reeves, with expert panel members from Brachers’ education sector group providing advice and comment on employment law, human resources and finance.

This latest webinar was part of an ongoing series of online forums which provide an open space for discussion around common issues arising in schools, to comment on dealing with issues, and to share and collaborate with each other.

Below, we provide guidance on some of the issues raised by attendees during the forum.

Can I ask an employee if they have had a coronavirus test?

• There is a difference between asking to see test results and asking an employee if they have had a test.
  – Simply asking if staff have had a COVID-19 test for general knowledge is not necessarily something that would impact health and safety in the school environment therefore this request might not be reasonable.
  – However, if an employee has visible symptoms of COVID-19 and is still in the workplace, it is likely to be reasonable in asking further questions, such as have they taken a test and should they still be working.
  – If an employee self-isolates with symptoms of COVID-19, it is likely to be reasonable for you to ask the employee if they have a positive test result in order to take necessary action with regards to the health and safety of other staff members and pupils.
• Coronavirus test results and the ability to review this information will fall under data protection legislation as they include personal information.
• As this information relates to someone’s health, it is likely to be considered special category data so you should be more cautious in your approach. There needs to be genuine reasons for requiring and processing this data, for example to help implement health and safety measures within the school and comply with employment law and any other legal requirements.
• In general, you should try and maintain an open dialogue with your staff to promote information sharing in order to adequately protect your staff and students.

 Can pregnant staff members come into work?

• A pregnant employee could potentially still come into work, as long as you can provide a safe environment and minimise risks for the employee. If you cannot offer a safe work environment, then working from home or an agreed suitable alternative may be the best options.
• If the employee considers themselves in serious risk of danger to health and safety, it would not be unreasonable to ask this employee to undertake different duties at home during the lead up to maternity leave. In such cases there is special protection against dismissal and detrimental treatment so exercise caution.
• Some pregnant employees may be classed as clinically extremely vulnerable, such as those with heart disease. Currently the advice is that where possible, those employees should work from home. It may be possible to furlough employees (but we appreciate that this option is limited for many schools).
• If a sick note is provided by a doctor, the school may place the employee on pregnancy related sick leave. However, there may be reluctance around this because maternity law dictates that an  employee who is off work because of pregnancy in the four weeks before the baby is due, must start maternity leave. However, if off sick and not pregnancy-related, it is treated the same way as any other sickness absence. Be aware of this and take a view on a case-by-case basis. Ensure decisions are documented and supported by relevant and up-to-date risk assessments

Do clinically extremely vulnerable staff need to stay home?

• Government guidance has been updated to reflect the new regulations which came into force on 5 November 2020, and remain in effect until 2 December 2020.
• Those in this group were previously given a letter from the NHS or their GP. It is understood that further letters should be received by employees within this category
• The government has said that clinically extremely vulnerable employees are strongly advised to work from home and if they cannot work from home, they should not attend work for the duration of Lockdown 2.0.
• If employees cannot attend work for this reason, they may be eligible for Statutory Sick Pay, Contractual Sick Pay, Employment Support Allowance or Universal Credit.
• The government has advised that other employees can continue attending school to work if they cannot work from home. This should be in line with wider rules and include observing good hygiene such as regular hand washing and maintain social distancing (understandably this may be more difficult in the school environment).
• Schools should ensure they follow the COVID-secure guidelines for schools, including compliance with ongoing health and safety obligations.

Do I need to undertake risk assessments?

• The government has issued a clear message that schools should be kept open and continue to offer before and after school clubs.
• Risk assessments should have been reviewed and updated in line with the new regulations.
• We would emphasise the importance of keeping your risk assessments under review and updating them if there are change in circumstances, since this is an ongoing responsibility.
• It is a good idea to review your general risk assessments. For particular vulnerable individuals or groups of employees, we advise to carry out individual risk assessments.
• Risk assessments can then be shared with staff to show that you are taking their health and safety seriously, and encourage them to remain in work.

Further support

Find out more about our work in the education sector.

If you require advice on the issues covered in this article, please contact Brachers Employment Team.

This content is correct at time of publication