COVID-19 and possible school closures

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13 March, 2020

Coronavirus and School Closures - What does this mean for school staff?

As you will be aware, the Government has announced new measures to delay the spread of COVID-19, a new strain of coronavirus.

Whilst the Prime Minister confirmed on 12 March that schools will not be required to close at this time, we expect that this could change at any time to protect against the spread of the virus. As of the time of writing, we do not know when these closures are expected to take place, however, any closure will undoubtedly impact on school staff, pupils and families.

At present, subject to a school's own risk management procedures, we do not believe that schools should automatically prevent staff, which includes both teaching and administrative staff, from working. This may be subject to change depending on future guidance as the situation evolves. Staff should continue to attend work, to help facilitate the provision of education and the continued support of Schools administrative functions unless guidance suggests otherwise.

Mandatory self-isolation

At present, the Government is recommending people that have returned from an affected area should self-isolate for 14 days whether they have symptoms or not. In addition, the Government is recommending that those who have been in contact with someone travelling to an affected area should also self-isolate for 14 days. Schools will be minded to consult the Government website and Public Health England for regular updates as to these areas and the recommended time for self-isolation. Further Education specific guidance we expect will become available from the DfE. Maintained schools should also follow the specific advice from their LA. As the outbreak spreads, this guidance is likely to change and schools should ensure they are up-to-date with current guidance and communicate this to staff accordingly.

If staff are not unwell and are able to work from home during a period of self-isolation then schools can require them to do so. If they are not able to work from home and school has required them to stay away from the workplace, then staff should be paid as normal to avoid a breach of contract situation arising. It is advisable to broach the subject sensitively with staff to avoid allegations of a breach of trust.

Suspected COVID-19 and absence from work

If employees feel unwell prior to attending work then they should follow your usual absence reporting procedures. It is advisable to reinforce these to employees when issuing guidance about pre-cautionary measures, together with details of any employee assistance programmes in place.

It is recommended that employers also communicate a procedure to employees which deals with situations where they become unwell with a fever, cough or shortness of breath whilst at work. This should include notification and isolation procedures.

Employees who are absent from school due to illness will be entitled to sick pay as per their contract of employment. If your contracts incorporate Burgundy and/or Green Book terms then the staff member absent will need to be paid accordingly.

Whilst not directly applicable to LA maintained schools, the Government has announced short term changes to the payment of SSP in order to encourage self-isolation where COVID-19 is suspected.

Emergency legislation has been passed in the form of the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, which now legally define self-isolation due to coronavirus. However, at the time of writing, the Government is yet to pass emergency legislation to amend the provisions as to when sick pay is payable. Previous announcements suggested removing the 4 day inception period to make sure SSP was paid on day one.

Medical evidence

From a legal standpoint, medical evidence such as a Fit Note is not required in order for SSP to be paid - an employer simply needs to be satisfied that the reason for the absence is genuinely sickness-related. However, employers will generally have procedures in place which require the production of medical evidence to certify absence after an initial 7-day self-certification period.

Difficulties may arise where employees are unable to visit their GP surgery to obtain medical evidence, or there may be a delay in the provision of medical evidence if advice has been taken remotely. In these circumstances, school leaders should exercise their discretion on a case by case basis as to whether to authorise absence and pay contractual sick pay/SSP without the usual requisite medical evidence.

It has been confirmed that the 111 NHS phone line and some GP surgeries can provide evidence of contact from someone who is self-isolating. This evidence should be considered for the purposes of sickness absence reporting.

Voluntary self-isolation

The current position is that where staff members are choosing to self-isolate by reason of personal choice (such as believing they have been in contact with an infected individual) schools are not obliged to pay sick pay. Again, discretion will need to be exercised on a case by case basis and consideration given to the employee being granted a period of unpaid leave. This position is again subject to change, depending on Government advice.

Agency workers and School closures

Agency staff with more than 12 weeks service will be entitled to the same terms and conditions as other staff members. If a school is closed, all members of staff will still be seen as working, therefore agency staff will be entitled to pay during that period.

One key difference is that the terms and conditions need to be matched only in terms of normal pay, not sick pay. Whilst agency staff will be entitled to SSP they are not entitled to any enhanced sick pay that you have, therefore any periods of sickness does not need to be paid at the same rate as other members of staff.

Those members of agency staff who do not have 12 weeks service will not be entitled to the same terms and conditions as other staff members. However, during a period of School closure, agency staff will still be classified as working and so will still be required to be paid during any closure period, even where the Agency Workers Regulations 2010 protection does not apply and they are not paid the same as other staff members. In addition, the length of any period of closure should be monitored, as the 12 week period will still continue to accrue, meaning some agency staff may accrue the entitlements during any period of closure.

Alternative working arrangements

Schools should prepare for the possibility of a full School closure, for both staff and students (whether voluntary or enforced) and consider what measures can be put in place to facilitate home working, where possible. This may involve ensuring that teaching staff and administrative staff have been issued with a laptop and/or have access to a computer and secure internet access. It will also be for employers to consider various data protection and security measures when working from home to avoid breaches of the Data Protection legislation.

Some schools may decide to offer teaching remotely via video link. Again the appropriate safeguards and risk management processes should be considered if this course of action is taken.

Similarly, schools will want to consider what home working measures can be facilitated where requests are made for dependant care leave due to school closures or isolation of symptomatic dependants.

These considerations should all form part of a wider risk management strategy and key measures that a school intends to take if the situation worsens should be communicated to staff. SLT should also be equipped with sufficient knowledge and resources to enable them to manage concerns by providing reassurance and signposting staff to services that can assist them.

Suspected malingerers

Situations may arise where schools suspect employees are self-isolating disingenuously. In these circumstances schools should probe the reasons for self-isolating and seek evidence that the reasons for self-isolation are genuine. If evidence is found which is suggestive of dishonesty then appropriate action should be considered under the school's disciplinary policy.

We will provide further updates as the situation develops, however if you have any queries arising as a result of this briefing, or you require a review of your school's coronavirus preparedness strategy, please do not hesitate to get in touch with a member of the Education Team.

For more information contact Laura Rae in our Education department via email or phone on 01772 220221. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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