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The NEU has provided a model letter for employees that has the aim of obtaining the protection of s.44 Employment Rights Act 1996.

Essentially, it is unlawful for employees to suffer a detriment where they did not attend the workplace due to reasonable concern that it would be dangerous to do so. The NEU is arguing that any decision to withhold pay or to take disciplinary action in respect of an absence would be a detriment and this unlawful.

The issue here hinges on whether it is reasonable to believe that it is unsafe to attend the workplace based on the information currently available. The reasonableness of any concerns about safety are likely to be influenced by a range of factors including, but not limited to:

  • the content of risk assessments;
  • communication with staff regarding safety issues;
  • Government guidance and decisions regarding safety;
  • advice from the Scientific Advisory Group for Emergencies (SAGE); and
  • any medical factors that may increase the risk for a particular individual.

Schools will need to carefully scrutinise the health and safety risks and the information available before reaching any decisions on pay or disciplinary action.

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