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Preparing for the return of staff post-lockdown

The country has been enduring with a period of lockdown since the Prime Minister's announcement back on 23 March 2020 and now, a number weeks later the conversation in the media, government and amongst businesses and schools is turning towards a possible easing of restrictions and movement towards re-integration of society and the workforce. For the Education sector in particular, this may come earlier than other areas. The latest from the Education Secretary Gavin Williamson is that, although no set date can yet be given for when school closures will be lifted, when asked about whether schools would open in stages, he indicated that this is expected to be the case and was something that the Government was putting a great deal of thought into.

Although we are yet to hear the specifics of how this phased return would work, or the Government's wider strategy for reintegration of society post-lockdown, we have set out below some practical steps for schools to consider when making preparations for the return of staff when the current restrictions end, highlighting also some legal risk areas to be aware of during these uncertain times.

Health and Safety

Keep up to date with both the government's latest guidance on health and safety and the provision of PPE, as well as Public Health England guidance and any sector specific advice issued by the Department of Education to ensure that your internal procedures are compliant. As employers, schools have legal duties in relation to the health and safety of staff and should ensure they regularly review health and safety measures in place so they can be updated in light of any further advice and guidance issued. The Health and Safety Executive has published specific guidance relating to Covid-19, which can be found here: https://www.hse.gov.uk/news/coronavirus.htm.

Communication

Put in place a communication strategy to ensure that staff are regularly updated on the protective measures you are taking and that you intend to put in place when staff return. Reassurance will be key to ensuring your staff feel confident and able to return. In particular, this should include reminding staff about what they need to do if they start to feel unwell at work and who they can speak to if they have concerns. We would also recommend you consider setting up a post-lockdown re-induction process for staff to complete on their return. This should include a full briefing on any new procedures in place, a reminder of good hygiene practices that should be followed, information about what is required of them to ensure safe working practices are adhered to and who they need to contact if there any concerns. Consider also setting up regular group and one to one meetings between staff and managers/SLT to discuss ongoing developments, issues to be addressed and to provide support and reassurance.

Social distancing and hygiene measures

We consider it likely that social distancing may need to continue in some format so it will be important to consider in advance how this can be facilitated in your setting. In particular, review the current arrangements you have in place around minimising the spread of infection, such as signs and reminders about handwashing and the use of hand sanitiser. In particular, you will also need to review your cleaning arrangements in place and look at how these may need to be increased or amended to account for more people being present on site. The DfE's latest guidance on implementing social distancing in education settings can be found here: https://www.gov.uk/government/publications/coronavirus-covid-19-implementing-social-distancing-in-education-and-childcare-settings

Staggered staff returns

start considering how you will approach staff returns. Many schools are currently using a rota system to cover staff requirements needed for key worker and vulnerable pupils on site. Consider how these can be adapted for the likelihood of a phased return. For those settings funded by the public purse, the DfE guidance is that, as you are still receiving your budgets as normal, you are expected to continue to pay staff. Therefore, provided nothing changes and this remains the guidance, you are still going to be required to pay any employees who continue to work from home. It is therefore worth considering in advance how duties might be able to be allocated between those who are physically going to be present on site and those who are not. Pay particular consideration to those who are in the official 'shielding' categories - our view is that these individuals are likely to be the last group that will return to being physically present on site. The government may even go as far as recommending the period of isolation should continue for longer for those in this category so they may need to work from home for longer. Consider - can these staff be allocated tasks that can be done from home (similar to they will be doing now) or provide teaching/support to pupils who are also in the shielding category, allowing their colleagues who have returned to focus on pupils physically present and the delivery of lessons? A key element to the success of this approach will be clear communication with staff around expectations and having open discussions about what duties will look like. This should for part of your wider communication strategy with staff as outlined above.

Staff risk assessments

Be ready to undertake specific Covid-19 risk assessments for different demographics of the workforce and look at measures you can start to put in place to mitigate risks identified. This will include discussions with staff to form a collaborative approach to best identify areas of concern and potential solutions. Risk assessments will naturally cover physical risks but should also address mental health risks. Staff may return to work having had very varied experiences of lockdown and some may have struggled with their mental health, whether because of isolation itself, loss / illness of family members or even resulting out of the challenges of juggling working from home with the childcare or home-schooling of their own children. Whatever the reason, risk assessments should look to identify what support systems there are in place for staff and consideration will need to be given as whether further support is needed and to how to ensure staff know where to access support. Keep clear records of risk assessments undertaken and the decision making process.

Employees who are reluctant to return

Whilst it is our expectation that those who are in the official 'shielding' category will be asked by the government to remain in lockdown for a longer period that the wider workforce. There are those who may fall outside this official category who have concerns about return to work - perhaps due to their own medical condition or because they are living in a household with someone who is 'shielding' or vulnerable. This may lead to a situation where the official government advice is that they can return to work but the staff member in question may be reluctant or even refuse to do so. In this case, we would encourage in the first instance an open and honest conversation with the individual to listen to any concerns and try to resolve or reassure them. The specific reason for an individual not wanting to return will be important and it may be that the matter can be resolved with some creative thinking, for example:

• Can they continue to work from home for as long as possible and be placed in a group of staff who physically return at a later stage?
• Can they be moved away from high contact duties to those that require less contact, to reduce the risk of infection?
• Can you implement a grouping strategy whereby staff work in teams, with set pupils in set physical areas so as to keep the same groups of individuals together?
• Can any flexible working practices be implemented? In this regard, longer term we anticipate there will be an increase in the number flexible working requests made and it will be harder for employers to justify rejecting such requests, particularly where an employee has been successfully doing their work flexibly for a period of time.

However, where concerns cannot be resolved, there are a few risk areas to be aware of:

• Where people have good reasons not to come into work or they are genuinely scared, if an employer takes detrimental/disciplinary action against the employee for refusing to return, there is a significant risk of falling foul to s.44(1)(d) or s.100(1)(d) of the Employment Rights Act 1996 which protects employees from being subjected to a detriment or dismissed on the grounds that "in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work". We are aware that unions in the wider public sector have been making their members aware of this provision and challenging employers on arrangements for staff who are currently working. If you have reached the point where you are considering dismissing or taking disciplinary action against a staff member for leaving/refusing to work in these circumstances, we would recommend that you take advice on a case by case basis before any such action is taken.
• It will also be important to consider the discrimination risks (particularly around age and disability discrimination) in making any decision to require such individuals to attend work or to take potential disciplinary action against any who refuse. This is because the specific circumstances would need to be looked at carefully (considering the reasons for the individual's refusal to work, the nature of the role in question and your reasons for wanting to take action). Again we would strongly recommend that advice is sought on a case by case basis if you have any staff in this position.

We hope this briefing note will be of use to you in your preparations and we will provide further updates as the situation develops. If you have any queries arising as a result of this briefing, please do not hesitate to get in touch

For more information contact Helen McNevin in our Education department via email or phone on 0333 207 4462. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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