1. Long term absence
In our experience, long term absence and the impact it has on colleagues and students is one of the most commonly encountered staffing issues for schools. Many schools have comprehensive absence management procedures which require several stages to be completed before reaching a resolution. Due to the demands on managers’ time taken up by these procedures, it is hardly surprising that when other priorities arise, review periods and monitoring trigger points are often let slip.
Also, it is likely that many of those with long term or intermittent absence issues will be among those that are shielding through the pandemic and so their sickness absences may become blurred with their COVID-19 related absences.
However, without close monitoring of those who may already be part way through an absence management process, previous warnings may lapse, and you could find yourself having to start from the beginning again.
There are some simple steps that schools can take to guard against this, such as:
- carefully diarising any warning and/or agreed monitoring periods to warn you in advance of any key dates;
- deciding as a school what your approach to COVID-19 related absences will be and apply that fairly and consistently; and
- continue to proactively engage with staff and their unions throughout this period.
It has been made clear that employment law and the Acas Code on disciplinary and grievance procedures (Acas Code) will apply during the pandemic and whilst social distancing and lockdown measures continue. Employees are still able to raise grievances and have these heard within a reasonable time in accordance with the Acas Code and any internal grievance procedures that may be in place.
Whilst the coronavirus will not provide employers with an excuse to automatically ignore or put grievances on hold, there is enough flexibility within the Acas code for adjustments to be made to procedures where reasonable.
Acas has released some additional guidance on disciplinary and grievance procedures during this time. In particular, this recommends that where an employer receives a grievance from an employee, they need to consider whether it is possible for them to carry out a fair grievance process taking account of the following:
- Public health guidance on social distancing and the closure of certain premises;
- The health and wellbeing of the staff involved;
- The urgency of the grievance;
- Access to technology where hearings need to be held remotely; and
- Any impact on the right to be accompanied.
Where agreement is reached with employees to deviate from the usual grievance procedure, we recommend that this is confirmed to them in writing and a copy kept on their file.
3. Probationary periods
Employers in the education sector are increasingly using probationary periods as a way of monitoring and assessing new employees’ suitability roles. These typically last between three and nine months from the start of employment and may be capable of an extension where necessary. Following completion of the probationary period, employees often gain access to additional contractual rights such as longer notice periods.
For those that use probationary periods, it is likely that some staff employed this academic year will be coming to the end of their probation during the pandemic. However, due to school closures and COVID-19 related staff absences, employers may not feel that there has been a sufficient period of time over which these employees’ performance and suitability for the role can be fairly assessed.
Where a probationary period comes to an end without any review, an employee is likely to assume that they have successfully completed it and their continued employment is confirmed. Therefore, rather than simply allowing probationary periods to lapse, employers should continue to be proactive in keeping track of end dates and advising employees early where an extension to probation is necessary. If an employee has not successfully completed their probationary period they should be given notice to end their employment in good time to avoid any entitlement to a longer notice period arising.
4. Employment tribunal deadlines
Although many cases that were listed for hearing have been postponed, parties in claims will still be expected to comply with Employment Tribunal deadlines that have been set. In some cases, not doing so may result in a party being excluded from taking any further part in the litigation.
Whilst schools continue to operate with fewer staff in both classrooms and offices, it remains as important as ever to recognise and act on any correspondence that comes from the Employment Tribunal. If the person that is usually responsible for HR issues is currently working from home, contingencies should be put in place to ensure that tribunal correspondence is not simply left on their desk or in their pigeon hole for when they return as, by then, it may be too late.
If it is simply not possible for a deadline to be complied with, there is always the option of asking the Tribunal for an extension, however, this is best done in advance so that permission can be granted before the deadline expires. We would also advise schools seek legal advice in relation to any tribunal matters.
In the Government guidance on safeguarding during the pandemic, it is clear that the statutory safeguarding guidance Keeping Children Safe in Education (KCSIE) will continue to apply and that the duty to act in children’s best interests will remain of paramount importance.
Therefore, although working practices may need to change in some areas to accommodate COVID-19 related measures, it is still essential to comply with the following:
- Safer recruitment requirements including carrying out all of the usual pre-employment checks;
- Ensuring all compulsory induction and annual safeguarding training is carried out (as well as making staff aware of any temporary safeguarding arrangements that are being implemented);
- Acting without delay if you receive a safeguarding allegation against a member of staff including referring to the LADO; and
- Making any necessary reports to DBS and the TRA.