• In the latest in our Education Matters Forum webinar series, we provided guidance on the legal and financial implications for the education sector as we move out of lockdown.

    The forum was held on 24 March, following the wide scale return of pupils to school.

    This latest webinar was part of an ongoing series of online forums which provide an open space for education professionals to discuss common challenges, comment on dealing with issues, and to share and collaborate with each other.

    Below, we summarise the issues discussed in the session and provide some top tips and guidance to be aware of.

    Staffing issues

    Most forum attendees confirmed a full return to school of all pupils. This is supported by data released on 16 March 2021, revealing that 94% of children are back in the classroom.

    Public Health England has now stated that critically extremely vulnerable (CEV) staff are no longer advised to shield from 1 April 2021.

    This means that:

    • CEV staff can attend work, provided social distancing guidelines are followed. At the time of the forum, shielding guidance did not reflect this. However, specific schools guidance has since been made available.
    • Statutory Sick Pay (SSP) will no longer be payable to CEV.

    Our advice

    It is important to keep up to date with current government guidance This can be difficult given that it is an area that is continuously changing.

    To assist with this, we recommend:

    • Keeping copies of the guidance you referred to at the time of reaching a decision so you can evidence what guidance was at that time.
    • Sign up to gov.uk alerts to notify you when there are updates.

    Section 44 letters

    Unions have been assisting staff with what is being referred to as a template ‘Section 44 letter’. This is effectively a letter from a member of staff refusing to return to work because they have a reasonable belief of a serious and imminent danger to their health and safety.

    Legal guidance

    • If you receive this letter, it must be taken seriously.
    • Discuss the matter with the member of staff and whether any changes can be made to mitigate the issues raised.
    • We recommend you evidence why there is no imminent danger. For example, carrying out risk assessments, providing updated health and safety policies, and ensuring that all documentation and steps being taken by you are in accordance with current government guidance.
    • Staff raising these issues should not be treated detrimentally or dismissed.
    • Consider on a case by case basis, and explore why they feel they cannot attend work.
    • Based on current guidance available, it seems that it would be difficult to successfully run such an argument.

    Face coverings

    Attendees at our forum did not have issues with staff and/or pupils wearing face coverings.

    Regarding this issue, a topical case to note is Kubilius -v- Kent Foods Ltd. This case confirmed that it was fair to dismiss an employee for refusing to wear a face mask.

    However, we want to emphasise caution if you decide to go down this route, as this example is based on the particular circumstances.

    Long COVID-19

    It has been reported that an estimated one in five will suffer with long COVID-19, experiencing  symptoms that could last six months or more.

    Those suffering can experience a variety of symptoms, which may mean they take longer to complete tasks or struggle with such active roles as teachers and support staff.

    Legal guidance

    • If a staff member is suffering from long COVID-19 which means that they are unfit to work, sick pay arrangements are likely to apply.
    • Whether it would be classified as a disability under the Equality Act 2010 is unlikely based on current evidence available, but this should be monitored. The safest approach for now is to treat it as if a disability, so reasonable adjustments may be appropriate.
    • In any event, you may need to consider temporary adjustments. This could include changing or reducing working hours, whilst balancing timetables.


    It was acknowledged that there did not appear to be an issue with teachers refusing to be vaccinated. However, as more staff become vaccinated there may be some short-term staffing issues from those suffering side effects.

    Legal guidance

    If as a result of being vaccinated an employee is unfit to work, this should be treated as normal sickness absence.


    Forum attendees shared concerns that due to the stress of the pandemic, staff may consider exiting the profession earlier than they otherwise may have done, or look to move roles.

    This may be exacerbated by new immigration laws implemented in January 2021 which could pose extra difficulties on schools recruiting from Europe. It also may result in recruitment for schools becoming more competitive.

    Our advice

    If this is the case, you may wish to consider if there are any incentives that you could offer to new recruits that might make you stand out from another school. Examples include specific career progression or subsidised housing.

    Remote learning

    There was discussion around what the format and delivery of education might look like post-pandemic.

    Our attendees all agreed that there is real value in face-to-face learning and that this needs to continue.

    Attendees also highlighted that virtual learning has some benefits, such as children learning at their own pace, and the ability to rewind and re-watch lessons.

    Concerns were raised that there may be an education divide with poorer children falling behind. This echoes recent findings by the Sutton Trust.

    Forum participants contributed that:

    • A form of hybrid learning may work, combining face to face and online learning.
    • Infrastructure and access to technology must be considered, which should be on a school by school basis. Care should be taken that the deprivation gap is not widened, as some pupils may not have the required technology or internet connection.
    • Benefits from children learning from home is that parents have a greater understanding of what their child is learning, which has allowed for more valuable conversations.


    There is no denying that predicting finances and creating budgets is difficult with such uncertainty.

    Phil Reynolds from our Education Matters Forum partner Kreston Reeves, advised:

    • Schools should undertake a review of senior staff who are not going through the pay roll. Going forward, HMRC may be more interested in this and require enhanced disclosure of payroll and accounts.
    • Auditors will be asking more challenging questions around budgets and forecasts. This is to establish whether they are actually feasible.
    • Management need to be able to provide auditors with as much information as possible around the background to decisions reached on finances.
    • It is appreciated that there are unpredictable expenses that schools may not have been budgeted for. Provided assumptions are clear and well documented, then this is the best that can be done.

    Further support

    Find out more about our services for the education sector.

    For further guidance on the issues covered in this article, book a free 30-minute consultation with our Employment team.

    This content is correct at time of publication

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