30 September, 2020
As many schools have now commenced a period of wider re-opening, following the COVID-19 lockdown and summer break, questions still remain regarding more vulnerable members of staff and whether they should be attending school, where they may be required to mix with hundreds of people on a daily basis.
The shielding period for COVID-19 was officially paused on 1 August 2020. There is suggestion that this period may recommence, if infection rates rise significantly, though presently there is no requirement for more vulnerable individuals to shield themselves at home. Government guidance confirms that pregnant women, in particular, continue to be considered 'clinically vulnerable.' A pregnant woman can also be considered 'extremely clinically vulnerable,' if they also suffer with an underlying medical condition. Considering this, a significant question remains whether or not a pregnant woman should attend the workplace, particularly for those working in the education sector.
In general, pregnant women should only be asked to attend the workplace where a school can demonstrate the steps taken to become COVID-19 secure, which will include specifying any risks identified in an individual risk assessment (which should include COVID-19 risks). In returning to work, a pregnant staff member should expect to adhere to (and be allowed to observe) strict social distancing and hygiene measures, to ensure that they are safe in returning to the school environment.
This position does alter when considering pregnant staff who may be classed as 'extremely clinically vulnerable.' For these women, the guidance currently remains that they are to work from home, wherever possible, to protect their health.
As an employer, School Business Leaders should remain mindful that the general duty to ensure the health and safety of pregnant staff continues, which includes undertaking a specific risk assessment for each pregnant woman in the school. If you are able to successfully identify risks, take steps to mitigate them and put measures in place allowing strict social distancing and hygiene, there is nothing to suggest that a pregnant woman cannot return to the workplace. In making this decision, it will remain essential that you meet with the member of staff, howsoever possible, to discuss the risk assessment and steps to have taken to reduce any concern they may have about a return to school. As part of this process, and to mitigate any potential risks, it may become advisable to seek the member of staff's consent to consult the opinion of Occupational Health (OH). The response you receive from OH and any adjustments recommended can then be incorporated as part of your risk assessment for having a pregnant member of staff return to the workplace and will also add the justification for your decision.
Despite taking these steps, this decision is unfortunately not without risk. If schools do not take appropriate measures and/or fully assess the risks to pregnant staff members, they may be entitled to bring a claim against you for any injury they have suffered to their health, if they were to contract the virus. Admittedly, the risk of this is low, as it will be difficult to pinpoint exactly where the virus was contracted, though it does remain a possibility. Further, a member of staff may decide to constructively dismiss themselves on the 'reasonable belief' that there was a 'serious and imminent risk' to their health and safety, entitling them to bring a claim for automatic unfair dismissal in the Employment Tribunal. This heightens the need to ensure you collaborate with staff, wherever possible, on the steps you are proposing to mitigate any risks.
Additionally, employers will need to remain aware of treating pregnant women differently to others, who may be considered clinically vulnerable and also those who are not considered vulnerable. In treating pregnant women differently, schools run the risk of a pregnant member of staff making a discrimination claim, on the grounds of the protected characteristic of pregnancy and maternity. To mitigate this risk, any decision a school makes will need to be clearly justified, when comparing it to the treatment of other staff, keeping records of such justification.
On 10 August 2020, the Royal College of Obstetricians & Gynaecologists (RCOG) issued guidance, as a means of highlighting the risks of pregnant woman women attending the workplace from the 28th week of pregnancy.
RCOG's guidance recommends that pregnant women, at this stage of pregnancy, should work from home wherever possible. This guidance places special significance on employees that are in 'public facing roles,' though is intended to primarily apply to woman women who are in the healthcare sector. Despite this and following extensive guidance for the education sector on the wider reopening of schools, it is now suggested that this guidance be taken into account by schools, as teaching staff in particular do perform a 'public facing role.'
This means that staff who are currently in or beyond the 28th week of pregnancy, should ideally work from home wherever possible, as the guidance suggests. Failure to adhere to this, though not currently a statutory obligation, could risk a breakdown in relations between yourselves and the member of staff and may also result in staff taking the decision to treat themselves as constructively dismissed, again for the 'reasonable belief' there was a 'serious and imminent risk' to their health and safety. Included in this is the risk of a discrimination claim and the risk of harm, as discussed above.
As a last resort, it does remain open to employers to consider suspension on medical grounds, if a member of staff cannot successfully work from home, or where the risks of COVID-19 cannot be fully mitigated (for staff who are below the 28th week of pregnancy). This will allow a pregnant member of staff to be suspended from work on full pay, until such time as they are able to safely return.
Justifying this course of action is notoriously difficult, due to the limited circumstances in which medical suspension applies, therefore it is essential that schools seek independent legal advice on their options, prior to making the decision to suspend. Failure to sufficiently justify medical suspension can again leave schools vulnerable to claims of constructive unfair dismissal and discrimination on the grounds of pregnancy and maternity.
In general, pregnant women can continue to work in the school environment, provided adequate safeguards are put in place, by completing an individualised risk assessment, enforcing strict social distancing and hygiene and discussing the steps you intend to take to mitigate risk, with the member of staff.
For pregnant women that who are on or beyond their 28th week of pregnancy, they should work from home wherever possible.
If home working is not possible and/or you have identified risks in the workplace that cannot be mitigated and home working is not possible, schools do still retain the option to suspend on medical grounds, as a last resort.
In any event, it should be highlighted that decisions regarding vulnerable members of staff, particularly pregnant staff, are not without risk. In order to mitigate these risks, schools should seek independent legal advice and remain abreast of Government guidance, which is consistently subject to change.