07 January, 2021
After the Christmas break period with schools reopening in January, unions including NEU and UNISON advised teachers not to attend the workplace and issued letters for their members to use when approaching their employers about this. In response to this advice, we advised our clients about the issues that this could potentially raise, as we suspected this advice would be open to challenge.
Following the National Lockdown announcement from the Prime Minister on evening of Monday 5 January 2021, the Department for Education has now addressed these issues and has adopted a similar stance to our advice, which is outlined in further detail below.
The NEU when providing their advice, which has now been withdrawn, were relying upon s.44 of the Employment Rights Act, specifically s.44(1)(d) which states: "in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work". This provides a protection from detriment, which is essentially anything short of dismissal.
We advised our clients that there are issues with employees being able to rely on this section of the legislation, as the reference to danger is not specified as a personal danger and therefore all staff members are likely to be able to show there is a danger, not just specifically those who have any element of clinical vulnerability who may seek to rely upon this protection. We also addressed the issue of whether you have to pay any staff members who do not attend work. A failure to pay these staff members could arguably be a detriment and so you should have some element of caution.
We advised our clients around what action, if any, you can take against any staff members who refuse to attend work. With the nature of Covid-19, we advised our clients that any danger is likely to be serious and imminent, and therefore the only question is whether the employee's belief in that danger was reasonable. A number of factors can contribute to whether this belief was reasonable and will depend on each individual circumstances.
Department for Education Guidance
The DfE have now commented on these issues, adopting the same view as us, and reiterating our initial advice as set out above. As a result, the unions have withdrawn their initial advice of encouraging staff members to refuse to attend the workplace. We suspect and predict that other unions may adopt the same approach going forward.
The government stated that a national approach of advice to educational employees attending their workplace should be be reconsidered. This is because section 44 of the Employment Rights Act is specific to each individual employee and cannot be applied in a blanket way to all school staff in the country. This would depend on each individual school and individual employee when considering different factors to take into account, and consideration needs to be taken to the health and safety measures that have been put in place as a result of COVID-19 to ensure safety of their employees.
What this means for Educational Establishments
Whilst some unions have confirmed withdrawal of their advice, this is an issue which could be raised in the future that employees may seek to rely on, and therefore there are important issues to ensure you have considered to be able to resist any potential future claims you might be faced with.
Inevitably, your staff may have concerns about their safety when coming into school/educational establishment, and the appropriate process is for those members of staff to resolve these with you and your leadership team. You should discuss their concerns and individual circumstances, making decisions on a case by case basis. Albeit the concerns of staff members may be valid, it remains an important point that risk assessments are continued to be carried out and reassurance should be given to employees that you have the relevant measures in place to minimise any risk of health and safety concerns.
You will need to set out what you have done to ensure that any belief in the danger of attending work is unreasonable, but you will also need to deal with the aspects of the NEU letter that states that they are willing to work from home. There is an implied contractual term that if an employee refuses to work then they don't have the right to be paid. Some employees have stated they are willing to do some elements of their role and not others, if you wish to challenge this please contact us for further advice on how to approach this.