COVID-19 mass testing: Can we require staff to conduct testing?

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28 January, 2021

As many will be aware, on 17 December 2020, the Government confirmed that all secondary schools and colleges in England will be required to partake in mass testing staff and students (known as 'lateral flow' testing), with effect from 4 January 2021. With the Christmas break looming, it left many school and college leaders with unanswerable questions about how they may be expected to implement this in their setting, particularly in such a short timescale. Since then, the Government have produced guidance on how they expect this process to work, in the form of the 'Schools and Colleges Handbook.' However, one issue attracts a considerably vague response - requiring staff to conduct lateral flow testing.

From an employment law perspective, there are a number of considerations that schools must make, before requiring members to administer these tests. We anticipate that with the wider reopening of schools and colleges pending, many in the education sector will face significant challenges in implementing a wider mass testing regime, particularly as staff may be reluctant to partake.

Legal concerns

Current Government guidance states that where schools and colleges require staff to conduct testing it must be 'in line with the agree terms and conditions of employment.' This unfortunately does not assist school and college leaders in understanding the legal position on testing and the circumstances where a member of staff may justifiably be asked to test.

It is highly unlikely that schools and colleges have specific contractual terms in their contracts of employment, covering circumstances where staff may be required to conduct medical procedures, in which case there is arguably no contractual basis on which to enforce the request. For those that do feel they have covered these circumstances in their contracts of employment, we would suggest seeking legal advice prior to relying on those terms to enforce this.

In addition to this, those in maintained schools will be aware that the School Teachers Pay and Conditions Document (STPCD) does not specify whether conducting testing will form part of directed time. This could lead to questions from staff regarding the pay they could expect to receive for work completed outside of directed time and outside of their current duties.

Further, staff will likely not be medically trained, which will potentially leave them feeling ill-equipped to conduct testing of this kind. We anticipate that a concern for many staff will be the liability placed on them in getting a test result 'wrong,' and the steps that will be taken to protect them. As an employer, a large concern will be the principle of vicarious liability, particularly where staff suffer from a lack of training/ confidence in the role.

Throughout this process, schools and colleges will also be expected to maintain the duty to protect the health and safety of their staff.

To address this, schools and colleges will need to give thought to a number of practical considerations, whilst remembering the duties and any ambiguities placed on them legally.

Practical considerations

Government guidance currently suggests that participation in mass testing and staff administration of mass testing is voluntary. Ultimately, that does mean that school leaders should not be forcing staff to partake in the programme and should instead consider what other means they may have of staffing testing sites. To address this, the Government's suggestion has been to utilise volunteers (including existing staff), specifically appointed agency workers/ temporary staff and any current or previous school/ colleague nurses. Again, consideration will need to be given to any health and safety obligations this gives rise to and any specific employment law considerations that arise in employing additional staff to carry out testing.

Where it isn't possible to conduct mass testing without the use of current staff, schools and college leaders need to have a mind to the specific duty they have to the health and safety of their staff, by ensuring they have up to date, specific risks assessments for them and take measures that mitigate the risks posed to staff, such as Personal Protective Equipment, social distancing and hygiene measures.

A further point to consider will be staff that are classed as clinically vulnerable or extremely clinically vulnerable. Whilst the pressure on schools and colleges will be great, thought needs to be given to whether it is necessary to have vulnerable staff conduct testing, particularly where they have shown reluctance or concern. Current lockdown restrictions in England dictate that staff who are clinically extremely vulnerable should not be in the workplace, however, we would suggest there is significant merit in deciding how you will re-introduce these members of staff now, which includes the stance you want to take on conducting testing.

Like much of the guidance for the education sector, the current guidance on mass testing can be subject to change and we would encourage all schools and colleges to keep abreast of updates in the coming weeks, particularly as the wider reopening on education settings draws nearer.

Unfortunately, current Government guidance leaves concerns regarding mass testing and the expectations on staff unanswered, meaning schools and colleges are left to make the decision about what they feel is and is not appropriate to ask of staff. We would advocate for school and college leaders to seek advice before requiring members of staff to conduct testing, as we anticipate that the concerns of staff will develop and change over time, with mass testing becoming a significant responsibility as more pupils return to face to face education.

For more information contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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