27 November, 2020
On Thursday, 19 June 2020 our Employment team delivered a Mock Tribunal covering a dismissal involving a complex number of issues including health and safety issues. To give a brief overview, the Claimant in our scenario worked from home for the majority of the initial lockdown period beginning in March 2020. The Claimant was then asked to return to school when the Government asked for secondary schools to commence a period of wider reopening. When the Claimant returned, she argued she did not feel safe, suggesting the school had not followed the Government guidelines for wider reopening and was not 'COVID secure.' As a result, the Claimant then treated herself as absent from work for a period for 4 days, failing to report her absence to her direct line manager, as per the Respondent's policy. The Respondent felt that the request to be in school was a reasonable management instruction as they felt they had followed all Government guidance and in failing to attend school and report her absence, the Claimant was Absence Without Leave. The Respondent then decided to discipline the Claimant for her actions and ultimately dismissed her.
The question for the Respondent and ultimately for many schools was, was the dismissal reasonable? Did the Respondent follow a reasonable process? Did the Respondent satisfy its obligations with regards to health and safety? And finally, did it do everything to try and alleviate the Claimant's concerns?
Below, we have addressed these questions and provided our take-away advice to safeguard against the scenario described above.
The education sector has been obliged to consider a wealth of information and guidance regarding the reopening of schools and advice for the safe return of a more 'normal' education provision. Though this has been subject to scrutiny and scepticism, it is the obligation of schools to ensure they adhere to this guidance, to assure to safety of pupils and staff.
The most recent guidance, for the reopening of schools, can be accessed here: https://www.gov.uk/government/publications/actions-for-schools-during-the-coronavirus-outbreak/guidance-for-full-opening-schools
In becoming COVID secure, one of the most notable pieces of guidance is adherence to the concept of bubbling, to prevent unnecessary mixing of pupils. The concept of bubbling differs, and sizes of bubbles can vary, depending on the school setting. For example, in a secondary school setting bubbles can stretch to entire year groups, suggesting that mixing should not occur outside of this unless unavoidable. Similarly, the guidance directs many school leaders to the need be aware of the physical limitations of their school building, suggesting the implementation of a one-way system to account for this. Most recently, teachers in a secondary school setting have also been asked to wear face masks when the COVID alert level is classed as 'high' or 'very high' in the following circumstances: "face coverings should be worn by adults and pupils when moving around the premises, outside of classrooms, such as in corridors and communal areas where social distancing cannot easily be maintained."
All of these measures assist a school in becoming COVID secure and protecting pupils and staff. For some, the difficulty may be that these measures have been taken, but have been poorly communicated to staff, as was also the case in our Mock scenario. As well as being COVID secure, school leaders need to have a constant mind to the communications they have with staff and their legal obligations to inform them about health and safety matters.
In our scenario, our Claimant was not consulted regarding the steps the Respondent school had taken to protect staff against the risk of COVID-19, which contributed to her fear about her safety.
As many school leaders will be aware, the need to inform staff of the steps taken to safeguard their health and safety is not only best practice but is also a legal obligation on any employer. Failure to inform staff about health and safety can create a situation where a member of staff feels unsafe, or even 'whistleblows', as a result of their concern. Similarly, staff may put themselves in a position of treating themselves as constructively dismissed, due to the "serious and imminent threat" they may feel to their health and safety. Dismissal in these circumstances can be considered an automatic unfair dismissal, provided the member of staff can evidence that they felt in serious and imminent danger, pursuant to section 100 (1)(d) of the Employment Rights Act 1996.
To safeguard against this, school leaders are reminded of their legal obligations to keep staff informed about health and safety matters. In difficult times such as these, it can be difficult to keep up to date and ensure all staff are informed when the circumstances can change almost instantly. However, it is essential that it remains a priority to inform staff about how their safety is being protected. In particular, this involves informing staff about any changes to working practices, any personal protective equipment they are expected to have/ use and sharing your COVID-19 specific risk assessments with staff (as well as your more general risk assessments).
By keeping your staff well informed, you are not only complying with your legal obligations but also alleviating any concerns or fears they may have about working during this unprecedented time.
A final issue raised by our Mock Tribunal scenario was the need to record your decisions in employee matters and keep a paper trail of your rationale, along with any supporting evidence for those decisions.
In our Mock scenario, our Respondent had very little information to evidence and base their decision on and had made little effort to document the rationale behind their decisions and the meetings that took place prior to dismissal. This is something they were ultimately criticised for in Tribunal as it did leave the Claimant with room to speculate about the reasons for her dismissal.
To address this, all schools need to make a conscious effort, when faced with these difficult situations and employee issues, to keep a clear and justified paper trail of the actions you have taken and any decisions you make. This includes justifying your process and the steps taken in accordance with your Disciplinary Procedures.
Finally, school leaders should remain aware of the need to take a note of meetings held in accordance with their Disciplinary Procedures, as a true and accurate record of the discussions that have been had. As part of this the members of staff you meet with should be given opportunity to review these notes, make amends as necessary and confirm and sign their agreement to them. Having a record of these conversations, not only aids you in justifying your decisions (particularly if it were ever to be challenged in an Employment Tribunal) but also helps confirm the process you have followed and the level of investigation undertaken into an individual's conduct.
COVID-19 continues to throw a curveball for the education sector, with infection rates fluctuating and guidance developing and changing on a regular basis. As a result of this, staff can feel apprehensive and unsure of their environment and the measures employers are taking to protect them, despite schools' best efforts.
Some of the main risks for school leaders in these situations is that staff begin to claim they feel unsafe, may treat themselves as absent or may even resign. Ultimately, some of these actions may necessitate the use of your absence management, grievance, Whistleblowing and even disciplinary procedures; all of which are time consuming processes and if implemented incorrectly, can result in staff looking to challenge your decisions in an Employment Tribunal.
To safeguard against these risks, school leaders are reminded of the need to keep abreast of current Government guidelines for keeping the school environment COVID secure. Similarly, school leaders need to remain vigilant to the legal obligations imposed on employers, which remain constant regardless of COVID-19, such as the need to inform staff about the steps taken to protect their health and safety. Finally, where employee issues arise with members of staff, it is imperative to keep a written paper trail of the steps you have taken to manage those issues, the process followed and the rationale behind any decisions you make. In taking these steps from the outset, schools avoid lengthy and costly Tribunal processes, and mitigate the risk of a successful claim significantly. Unfortunately, the same cannot be said of the Respondent's in our Mock scenario who were ultimately criticised for the lack of information they provided to staff and lack of documentation to support their actions.