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18 May, 2021

Our education team regularly run free, Q&A sessions via Zoom which gives attendees the opportunity to ask any questions that may be relevant to them at the time. Please see below a summary of some of the questions that we have been asked most recently and our responses.

How long should a phased return last?

Ultimately, the length of a phased return should be decided on an entirely case by case basis and any plan should revolve around an employees' position and needs. In order to make this determination, employers should review any medical evidence and/or occupational health reports, which should provide further information.

Such information may also provide details for what the phased return should look like, such as reduced hours, more training, reintegration with colleagues, and lighter or different duties, however the review of the evidence should not replace the need to communicate with the employee.

Are Forbes aware of any permanent changes to how school buildings may be used post-lockdown?

The Property team have observed some changes to properties, such as:

  • changing how queues were ordinarily formed at lunch time in canteens and instead having in place a larger number of dining zones in order to reduce social interaction;
  • the introduction of more year group-based activities, in order to keep 'bubbles' together;
  • continuous reviews of touch points in the building; and
  • utilisation of meeting/conference rooms as isolation rooms in the event of positive Covid cases.

Schools would be well advised to look at long term plans and strategies for the use of buildings and space, particularly as it has been recently reported by medical experts that Covid may become something similar to a seasonal flu and therefore whilst rates are decreasing in the warmer months, there may be further rises in the winter. As such, it may be useful to keep some semblance of the property changes which have taken place in order that prompt reactions can take place in response to any further developments, where necessary. Additionally, employment law considerations should be borne in mind alongside property developments, as, for example there may be working time considerations in the event that there are more dining zones at lunch times which may require more staffing than previously.

Is there a benefit to hiring an external, rather than internal, Data Protection Officer ('DPO')?

Under the GDPR, schools require a DPO. Whilst this role can be fulfilled by an existing employee, it is an onerous task, both in terms of the time required, but also as it involves a complex area of law which requires ongoing training. Schools should also be aware of potential conflicts of interest if existing employees are hired and of the requirement for a DPO to be independent.

As an alternative, many schools elect to have an external individual as their DPO (for example, from Forbes Solicitors or another organisation), as such would be experts in the relevant data protection law and be entirely independent. Some schools may also choose to have an internal DPO but seek external support for the carrying out of audits, seeking any specific advice when necessary or training.

Schools should note that, from an employment law perspective, if an internal employee is hired to be the DPO, this additional duty and role should not be seen as simply an 'add on' to their existing contract of employment. It is a critical position which requires training, time and dedication and therefore some other element of their work should be removed. For example, Forbes were recently instructed in a Subject Access Request matter which materialised in over 66,000 emails being found which needed to be reviewed, redacted and shared.

As the pandemic has developed, there has been a clear rise in the use of remote learning and therefore the use of data and potential associated risks has never been higher. Schools also hold extremely sensitive, personal data about pupils and employees, so it is important to consider DPO and data protection requirements carefully.

A teaching assistant has been absent due to shielding and has recently returned to do work outside of the classroom. Due to the vaccine roll out, access to PPE and the regular lateral flow tests, is it now reasonable to ask them to fulfil their role and return to the classroom, as we cannot find any more reasonable work for them to do?

The school should firstly ascertain whether the employee is worried or reluctant to return back to the classroom, or whether they have they had specific medical advice that they should not be in the classroom. If there is any such evidence, employers need to see this and base the next steps on the contents of the same. If there is not and the employee is worried and reluctant, it is important to look to build up the employees' confidence by advising them of the risk mitigation measures in place, such as those referred to above, and the risk assessments. The employees' concerns should be discussed and employers should ask if there is anything else they can do to alleviate any worries. If such discussions do not help, then schools would be advised to seek a report from occupational health to ascertain whether there are any long term conditions or anything that may amount to a disability under the Equality Act 2010.

Schools should also thoroughly consider whether there would be any tasks at all this employee could do outside of the classroom. If there is genuinely nothing else that could be offered, the school should ensure there is robust evidence of this decision documented, so such could be used if any employment or personal injury claim is brought later down the line.

What will happen if we put on a summer school? How do we pay the staff, as we have historically paid them a flat fee?

There is appetite from the government for summer schools and funding is available, however this is predominantly for maintained secondary schools, special schools and pupil referral units and the funding is generally restricted for 2 weeks. Further, this is mainly aimed at pupils entering year 7 in September 2021, as they are likely to have missed a significant proportion of key stage 2 teaching and valuable preparation for secondary education.

In terms of the finer details, there are presently no specific rules about pay and holiday entitlement. If the summer school is staffed by external individuals, the obligations will apply under the contracts. However, if the staff are internal staff, there will be some issues with respect to holiday entitlement, as contractually staff will have all of the summer holiday off work. Whilst unconventional, these staff could use their holiday entitlement during term time and school have teaching cover at this time, and no further payment will be required. In terms of an additional payment to be made to teachers, there is unlikely to be a problem with paying a fixed, flat fee, provided the staff agree to this and it is more than minimum wage.

If schools are considering summer schools, they should look at the funding available and decide how to approach the staffing and holiday issues, and then consult with staff and ensure they are comfortable.

JOIN US AT OUR NEXT EDUCATION Q&A SESSION WHICH TAKES PLACE ON 8TH JUNE. TO BOOK YOUR PLACE PLEASE CLICK HERE

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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