29 May, 2020
In an attempt to contain the spread of coronavirus, schools were relatively suddenly closed on the 20th March 2020, save for children in priority groups. The government has now announced that as of the 1st of June there will be a staggered return of children to school. Whilst many Councils have said that they are not yet happy to reopen schools in their area at the moment, what factors should schools be considering when they do reopen, to prevent future claims that children, pupils, visitors or their families, were exposed to and contracted coronavirus due to a breach of the duty of care owed to them by the school or that injury was caused as the state of the building is otherwise unfit for use due to standing empty or underused for several weeks?
Schools will naturally be cautious about opening too soon, and before appropriate measures can be put in place to ensure pupil and staff safety. This will involve a careful risk assessment to avoid any future claims for breach of the school's duty of care. The Government has issued a raft of guidance including Actions for educational and childcare settings to prepare for wider opening from 1 June 2020 and Coronavirus (COVID-19): implementing protective measures in education and childcare settings available from the Department for Education website that should be reviewed and considered. More detailed guidance is also due to follow. It is made clear that it is guidance only, and does not need to be followed exactly, recognising that each school will have its own particular circumstances and will have to adapt its response to its environment.
Despite these strange times, the legal position has not changed. In particular, in any claim arising out of an alleged exposure to coronavirus the claimant would need to prove that there had been a breach of the school's duty of care either to staff, for an employers liability claim, or to students and visitors for a public liability claim. Then that the breach actually led to the development of infection such that the claimant suffered harm. These will not be easy matters for a claimant to prove, especially if schools have carried out a proper risk assessment and brought in appropriate social distancing and other measures. What measures these are will very much depend on the particular circumstances in each individual school.
So how do you implement practical social distancing in schools? And what else should you be considering. The government guidance referred to above and from a claims defensibility perspective, following it is going to be make it easier to persuade a court in future that the steps that your particular school took were reasonable. You should document the steps you have taken, including the reasons why. It is particularly important to have documentation setting out the reasons why you departed from government guidance if you felt that is the appropriate thing for your school. Document what you are doing now, as in future, when a claim is made perhaps 3 years or more down the line you will not remember exactly what you did, when and why. Remember children can bring claims for personal injury for up to 3 years after their 18th birthday, so for some reception children that could be in 16 years' time.
For now, only nursery, reception and years 1 and 6 are being asked to return once schools open after the 1st June 2020. These are some of the youngest children and getting them to understand what they have to do is certainly going to be a challenge.
All schools will be different and appropriate consideration needs to be given by headteachers about their particular circumstances. However, here are some general considerations when thinking about your risk assessment prior to reopening:
Is the building fit for purpose, as it may have been unused if the school was not open for children in priority groups? The focus of the government guidance is very much on preventing the spread of Coronavirus but the infrastructure is also an important consideration top avoid the risk of harm. Are heating lighting and water services all working, have you considered the risk of legionella in water systems that have been unused for weeks. Do any repairs need to be done before the school can be reopened safely?.
Will you have adequate staff bearing in mind that some staff may be vulnerable and therefore should be working form home where possible, or if not possible offered roles that allow them to social distance?
The government is encouraging parents to walk or bike their children to school, with only one parent or carer per pupil being involved. Are there appropriate parking spots far enough from school for those parents who have to drive? How can you arrange staggered drop off times to minimise the danger of parents gathering at the school gates? What time will the school day have to start? Can you mark out drop off zones to keep children in small protective bubble groups of no more than 15 pupils? What arrangements will you make for pupils to be met and taken into school.
Frequent hand washing needs to be built into the school day. What will you have to do keep class sizes to "bubbles" of no more than 15 pupils, without mixing with others at all during the school day, and keeping the same class teacher and same classroom, all week? How will you stagger lunch and other breaks? How will food be provided to the children? Have you assessed whether classroom layouts need to be altered to ensure social distancing? Unnecessary items and those that can't easily be cleaned need to be removed. Increased frequency of cleaning and the reducing of the use of shared items and utilising out door space need to be implemented. What about corridors and other shared spaces? Can you implement a one way system to limit contact? Doors and windows need to be left open as much as possible.
Parents will no doubt be concerned to have reassurance that their own children are safe and may be reluctant to return their children to school unless they also assured so think about messaging out to parents and others the steps at your particular school. Will you be telling parents that their child can't bring any personal items in to school? Do they need to wash their child's school clothes at the end of each day as some schools are suggesting?
How is your school going to manage to keep class sizes to 15, will there be enough classrooms as more and more year groups are encouraged to return? If children need to move between classrooms can you stagger class start times to limit the number if children moving around school at any time?
An adequate risk assessment and documenting measure taking and why are going to be crucial to help defend any future claims for breach of duty of care by schools in reopening. Government guidance should be reviewed, and updated guidance checked and followed. Each school will have different issues so explaining your school's decisions will be important.