23 September, 2020
A Primary School was recently forced to close all but one year group as a result of the infection of a number of staff with Covid-19 following an out of school social event. Members of staff attending the event contracted Covid-19, and the infection spread to other members of staff who did not attend. Whilst the staff were not breaching the local lockdown rules, the case brings to light a number of concerns for education providers trying to remain open in the current climate. It raises complex issues from an employment law standpoint in particular. Could such action warrant disciplinary action, amount to misconduct, or affect the level of remuneration received by staff if they subsequently need to isolate for example?
From a disciplinary point of view the incident under scrutiny occurred off the school premises, outside of working hours, and relates to the employees' personal lives. As such, it is difficult to identify the attendance at the event as a conduct issue to be dealt with under the provider's disciplinary policy and procedure. However, given that staff members are aware they will be unable to attend the site following a positive test or contact with a person having the virus, it is arguable that their conduct has affected their ability to do their job if they are unable to work from home. Additionally, there are instances where an employee's actions outside of school hours and off school premises create disciplinary issues. Behaviour on social media is a good analogy, where posts potentially affecting the provider's reputation or comments that could amount to the bullying of other staff members may have disciplinary implications. Generally, it is made clear to staff what is and is not acceptable in a Social Media Policy. As such, it would be prudent for education provider's to carry out a review their policies and procedures to ascertain if amendments could be made to ensure staff are aware of the expectations upon them regarding social distancing and to clearly set out a procedure that will be followed should a breach occur. Although changes cannot place obligations on staff beyond what can be justified legally, given the complex and confusing nature of the current social situation setting out best practice and the expectations of the school offers a degree of clarity essential to ensuring all members of staff move forward on the same page. Following the introduction of further local lockdowns with firm social distancing restrictions being reintroduced, it would also be wise for employers to stress the need for employees to fully comply with the restrictions being put in place by the government and clarifying that any breach will potentially have disciplinary consequences.
Education providers should also bear in mind the potential for being vicariously liable for the actions of staff should they be responsible for infecting other staff or pupils with the virus. Merely contracting the virus, whether in breach of lockdown rules or not, and unconsciously infecting others when asymptomatic or before symptoms appear may be too remote to result in any degree of liability for the education provider. However, should a member of staff displaying symptoms come into work and infect staff or pupils the education provider could be held liable irrespective of any knowledge.
There are also potential financial implications for schools where teaching staff contract the virus from other members of staff who have contracted the virus outside of the school. Paragraph 10.1 of the Burgundy Book setting out the conditions of service for teachers in England and Wales states that when a teacher contracts an infectious or contagious illness in the course of their employment they shall receive full pay for the time they are away from work and the time shall not be deducted from sick leave allowance. In practice, the financial responsibility may not be over and above the ordinary provisions relating to sick pay which allow for a minimum of 25 working days at full pay upwards depending on length of service. But if a particular individual became significantly ill for a duration of time due to contracting Covid-19 from another colleague within the school the additional financial burden resulting from an application of paragraph 10.1 could kick in.
The impact of potential professional regulatory intervention should also not be overlooked. A number of professional regulatory bodies have confirmed that those working in the profession may be investigated and face professional sanction if they are found to be breaching lockdown rules. To date, the TRA have not passed comment as to whether this will be the case in the teaching profession, and it is too early for any alleged breaches to have been sanctioned by a professional body, but the possibility that this will be the case has to be borne in mind. According, it would be wise to make staff aware that this could become a professional conduct issue beyond internal procedures and advise that they carefully consider the extent to which they are complying with government guidelines and restrictions and the impact any breach may have on their career.
Finally, education providers must keep in mind the necessity to maintain the confidentiality of staff members in order to avoid claims for constructive dismissal for breach of trust and confidence. Whilst there may be a need to liaise with parents and possibly the press given the high profile nature of the subject matter, it is imperative that any communications adhere to legal obligations owed to employees both in employment terms and data protection.
The constantly changing landscape of Covid-19 restrictions and the impact the changes have on the legal obligations resting on schools as employers and education providers are complex and often confusing. Our specialist Education team at Forbes can provide advice to education providers who have queries relating to any aspect of the impact of Covid-19.