Education Q&A February 2021

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26 February, 2021

How do the changes to the off-payroll working rules (IR35) due to be introduced in April affect schools?

IR35 applies when a worker or self-employed contractor provides their services through their own limited company. The rules make sure that contractors, who would have been an employee if they were providing their services directly to the client, pay broadly the same tax and National Insurance Contributions as employees.

IR35 was introduced in the public sector in the 2017 which means that academies and local authority schools should already be complying with the rules. From 6 April 2021, IR35 will also apply where the services are provided to medium or large private sector clients, which includes many independent schools. "Small" businesses are excluded from the rule change. An independent school will be a small business if it is established as a company and meets two of the following criteria:

  • annual turnover not more than £10.2m.
  • balance sheet total not more than £5.1m.
  • number of employees not more than 50.

For independent schools to which the changes apply, IR35 puts the onus on the school to decide whether any of the contractors who provide services via a service company are "deemed employees" of the school for tax purposes. This will involve determining whether a contractor is genuinely self-employed, known as an employment status determination. If the contractor is not genuinely self-employed, the IR35 rules apply and the contractors should be brought onto the payroll and will be subject to tax and NICs. For further information and specific advice please contact our employment law team.

Can we make COVID-19 testing and/or the vaccine mandatory for school staff?

Having a test or taking the vaccine is a personal choice for everyone and there is no legal basis you can rely on to force people to be vaccinated. However, as a matter of contract and employment law, if you can establish that asking staff to take the vaccine is a 'reasonable management instruction' and they refuse, you may be able to justify taking disciplinary action against them. Whether it is reasonable to ask, and take action against staff who refuse, is subject to much debate and has already seen a lot of press coverage. This question has not been tested in the Employment Tribunal (yet), but our view is that it will depend on several factors including whether the vaccine will actually protect other members of staff and pupils and your type of school, this requirement might be more reasonable in roles which require much closer contact with pupils such as Special Schools. We recommend that you create a policy and share this with your staff.

Can we insist that staff tell us if they have been vaccinated?

This information will constitute sensitive personal data for GDPR purposes therefore you will need to comply with GDPR rules of processing special category data. This will include identifying the lawful basis you are relying on for monitoring, update your Privacy Notices and only retain the information for as long as you need it.

Points to record should be limited to that which is relevant which may include:

  • Are you going to have the vaccine?
  • Please let us know when you have had the vaccine.

For further advice specific to your setting please get in touch with our specialist data protection team.

Do schools have to re-open fully on 8 March 2021?

Prior to the announcement on 22 March that all schools are to reopen fully on 8 March 2021, there was speculation of a phased return. We have heard that despite the Governments position some schools are going ahead with a phased return, mainly for capacity and staffing reasons. The ramifications of not following the Government's instruction will largely depend on the feeling amongst parents and the type of school. With the general consensus being that most parents cannot wait to see the end of home-schooling, there is likely to be widespread criticism of a phased return. This could give rise to a claim for judicial review (which is unlikely given the costs involved) but more likely parental complaints, which should always be dealt with in accordance with the school's complaints policy.

For independent schools, not opening fully on 8 March may expose you to breach of contract claims for failure to educate. And for academies, you may find you are in breach of the funding agreement. On this basis we would recommend against adopting a phase return approach unless you have reasonable justifications for doing so.

What are the long-term implications of COVID-19 on schools?

There are a few reasonable assumptions that can be made on the long term implications of COVID-19 in schools.

One unfortunate issue that the past 12 months are likely to have had a significant impact on the mental health of both employees and pupils. Therefore you may want to look at what support packages you have in place to support the wellbeing of your staff and pupils.

The present situation has also shown that some roles within a school can be done from home. Whilst it is not going to necessarily be relevant for teaching roles for other roles within a school working from home might be a change employers wish to make and could help in attracting staff.

Performance management of staff could also be challenging for the next few years. The long periods of home-schooling is unfortunately likely to have had an impact on the learning outcomes of pupils. Therefore you might find that discerning what issues are caused by these impacts and what are caused by performance issues of teaching staff hard to differentiate.

It is also worth considering that unfortunately COVID-19 is unlikely to go away completely in the next few years with the potential of new variants emerging. You may as a school therefore need to have contingencies in place to deal with any further outbreaks in the future.

These are unlikely to be the only issues though. It is going to be hard to predict the exact long term implications and so schools are best placed to be as prepared as possible.

What is the position on Clinically Extremely Vulnerable staff and shielding when we return to school?

Although schools are due to return from 8th March 2021, the rules in respect of shielding will be in place until at least 31st March 2021. Therefore staff who are shielding should not be returning to work during March.

Further consideration of what next steps can be taken will need to take into account any future guidance on shielding but in the medium term it might be best to make plans that allow shielding staff to work from home for at least the second half of the Summer Term.

If any shielding staff do want to return to work sooner than is set out in official guidance, we would recommend caution and ensure that any staff in this situation you receive an Occupational Health Report.

Should pregnant staff be returning to school?

For staff who are 28 weeks or more pregnant or have are pregnant with underlying health conditions then whilst there is no prohibition on these staff returning to school, extra precautions will need to be taken for these staff and so schools should consider amending the duties of these staff to ensure they can maintain social distancing as much as possible or allow them to work from home if possible.

For all pregnant staff, regardless of the current COVID-19 outbreak, should always have had a formal risk assessment in place for them to carry out their job. If staff are under 28 weeks pregnant with no underlying health issues, these staff should have an appropriate risk assessment of their situation carried out to make a determination if it is safe for them to return to work. If the risk assessment shows they are unable to work then amendments to their duties should be considered. If this is not possible employees can be suspended on medical grounds but this should only be if no other options are available.

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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