Guide to shielding in the new national lockdown
As the new national lockdown takes effect, our employment solicitors have provided an update and general review of shielding guidance.Read more
With the new academic year on the horizon, there is still much uncertainty about the return to school in England.
Whist some schools were able to provide face to face learning for those in the identified year groups before the summer, others struggled to implement adequate social distancing measures and remained closed to the majority of pupils.
Although the Prime Minister has pledged that all schools will be open by September and said that it is “our moral duty as a country to make sure that happens“, unions continue to express their fears over staff safety once all staff and pupils return for the first time since March. It is no wonder, then, that school leaders may find themselves, in the new term, with a balancing act to perform between their roles as education provider on the one hand and employer on the other.
We have set out below some useful questions and answers which we hope will assist you with staffing issues which you may encounter in the coming weeks and months as we all find our way through the new normal within the education sector.
We have followed all the guidance and are ready to welcome back all pupils and staff but what can we do if a member of staff says that they are not able to come into work because they are shielding?
Those individuals that were identified as clinically extremely vulnerable had been advised to take extra precautions during the peak of the pandemic. They received letters which advised them to “shield”, i.e. take additional precautions such as not leaving the house and limiting their contact with others.
However, the shielding advice was paused from 01 August 2020 for all except those clinically vulnerable individuals in local lockdown areas.
The Government guidance in relation to these individuals with regards to work is that they “can go to work as long as the workplace is COVID-secure, but should carry on working from home wherever possible.” Further and up to date guidance can be found here.
The majority of roles in a school will require the employee to be physically present in their place of work but consideration should be given in the first instance as to whether homeworking is possible for this individual.
Where homeworking is not an option, you should work with individuals who will have spent a considerable amount of time out of the workplace to reassure them of the safety measures that have been put in place and to agree a return to work that they are comfortable with whilst still meeting the needs of the school.
A teacher has booked and paid for a holiday to France during October half term. They say they can’t afford to lose their deposit and will be travelling unless the holiday is cancelled. What if they have to quarantine when they return?
The Government continue to review the need for quarantine arrangements to be put in place following a return from travel abroad. The latest travel advice can be found on the government website here.
If the teacher was to travel, despite the requirement to quarantine on their return, the legal position regarding their entitlement to pay during the quarantine period is unclear. They may argue that the government restrictions mean their inability to work is involuntary and so they should not be penalised for it. However, if the overseas trip were booked in the knowledge that there would be a period of self-isolation at the end of it, the teacher may struggle to establish that their inability to come into work was caused by a factor over which they had no control.
Given the current uncertainty, we would advise schools to be proactive from the beginning of the new term by clearly engaging with staff about when they will and will not be paid for absences related to COVID-19 that are not due to illness. That way, staff will have time to make preparations and discuss their plans with school well in advance of any time off they may need.
Are there any particular precautions that need to be taken for pregnant employees?
Those employees that are pregnant should, generally speaking, be treated in the same way as those in the ‘clinically vulnerable’ category. Where an employee is pregnant, you should consider the following:
Where, despite having considered all alternatives, the risk to a pregnant employee remains too high, you may need to consider suspending them on full pay on health and safety grounds. This should only be used as a last resort, and we would recommend taking legal advice before taking this step.
Please note, the information included in this update is correct at the date of publishing.
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