All we want for Christmas is clarity

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11 December, 2020

What are the restrictions this festive period and how might we a manage staff conduct during this time?

With the Christmas period looming, employers in the education sector should now have a mind to the ongoing restrictions coronavirus (COVID-19) pandemic restrictions. With Christmas comes temptation; not just because of the festive delights on offer this time of year, but also because of the ongoing restrictions imposed by the Government. We anticipate that this time of year will present significant temptation for staff. The temptation to get away and experience some rare Christmas sunshine, the temptation to mix outside of households/ support bubbles, the temptation to hold parties in this unusually quiet festive season and many, many more.

So, what are the current restrictions and how should you attempt to manage staff conduct during this period?

Travel

Current Government guidance maintains that travel should be for essential purposes only, unless the destination is included in the Government's 'travel corridor'. This unfortunately means that those hoping to travel abroad for a Christmas break and/or to see family, may be unable to travel depending on the destination they had planned to travel to.

Added to this is the pressure that the position of those living in Tier 3 areas in relation to international travel is decidedly unclear. Currently, the position remains that those in Tier 3 should avoid travelling outside of their area, regardless of whether this is nationally or internationally. The Government suggest that if someone in a Tier 3 area does need to travel, they should consult the Foreign, Commonwealth and Development Office Travel Advice for their destination and the travel corridors list. Whilst we understand the position to be essential travel only, school leaders are advised to monitor this advice, particularly where you have a number of staff living in a Tier 3 area, as it may be subject to change.

Between 23-27 December 2020 the guidance on travel relaxes, allowing people to travel between tiers and other nations of the UK if necessary to meet with other households (subject to restrictions) or return home.

In terms of pay, the guidance remains the same in respect of self-isolation following international travel, in that an employee is not entitled to Statutory Sick Pay (SSP). If staff are unable to work from home during this period, the enforced period of isolation makes them unable to work, meaning there is no implied right to be paid during this time.

An area of difficulty for school leaders will be in treating employees differently. Those who will be able to work from home will be able to receive full pay during self-isolation but you may wish to avoid establishing an unsustainable precedent for those who cannot work from home. To manage this, we strongly suggest school leaders make the policy that will be applied in this regard clear to staff and apply it equally, keeping a mind to the risk of staff alleging unfair treatment and/or discrimination. We also advise taking a clear view on travel for non-essential purposes contrary to Government guidance. You are strongly encouraged to consider the reputational impact of having staff travel illegally and the impact of staffing levels on pupil to staff ratios if an individual was then required to self-isolate having travelled and/or contracted COVID-19.

Mixing outside of households

The guidance on mixing between households currently differs depending on what tier. For example, Tier 3 households are currently banned from mixing socially outside of their household or support bubble in all private and most public settings.

Between 23-27 December, this restriction is relaxed and up to three households will be able to meet socially to form a 'Christmas bubble.' This applies irrespective of whether staff are living in Tier 1 or Tier 3 areas. Christmas bubbles are restricted to meeting in the home or in outdoor settings (depending on the restrictions of the areas tier). The Government have confirmed a distinct ban on mixing outside of your Christmas bubble and meeting your Christmas bubble in a social indoor setting, such as a pub or restaurant.

Again, we anticipate the difficult task for school leaders will be to consider how they wish to manage staff who knowingly contravene these rules and cause risk of harm to themselves and others as a result. In making this decision, it is important that any stance taken applies equally to all staff, to mitigate the risk of allegations or unfair treatment or discrimination, and is communicated to them clearly in advance.

Unfortunately, Christmas will look different to normal for all this year, and employers are facing the difficult task of maintaining staff morale and not appearing a Christmas 'Scrooge,' whilst requiring staff to comply with the current Government restrictions. Although this is a difficult balance, we strongly advocate you take a proactive approach to managing staff during this period, to mitigate the number of conduct issues you may then encounter in the New Year. To do so, it is essential to keep abreast of the latest guidance to ensure you are not caught off guard, especially as the guidance can be subject to change so quickly. Similarly, if you haven't already, it is now necessary to consider the approach you wish to take to staff conduct issues and produce clear, consistent staff-wide communications. Our suggestion is that communications clarify the current restrictions, including those which remain over the festive period and emphasise the impact of failing to follow these rules and how any non-compliance will be dealt with by you.

For more information contact James Barron in our Education department via email or phone on 0161 918 0017. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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