Covid Risks and Trade Union Advice (Section 44)

3rd January 2021

 I hope you all managed some time to relax over the Christmas period and I sincerely wish you all a Happy New Year…but as I write this update, I know there are no simple answers to the plethora of questions that will be filling your inbox! In addition, I am acutely aware that this puts you under increasing pressure, with only a short time before your school is due to re-open!

There is so much information and conflicting opinions for you to consider as well as concerns from staff and parents about safety and well-being.  The government states in their latest guidance ‘judgments will need to be made at a school level about how to balance minimising risks from coronavirus (COVID-19), by maximising control measures, with providing a full educational experience for children and young people’ (government guidance dated 30th December 2020).

So, how do you make these ‘judgements’ that you are required to make by law when you are also aware of the following advice from Teaching Unions?

NEU are advising its members how to rely on statutory rights under health and system legislation to refuse to attend workplaces they consider to be unsafe.  These rights are provided under The Employment Rights Act (section 44) giving individual employees the right not to be subjected to detriment if they refuse to attend/leave work due to their reasonable health and safety concerns. Under section 100 of The Act, an employee’s dismissal for refusing to attend/leave work due to their reasonable health and safety concerns is automatically unfair. The key to these protections is that the danger must be “serious and imminent”.

NAHT have commenced preliminary steps in legal proceedings against the Department for Education calling on the government to remove people in schools from the physical harm caused by the current progress of the disease and to work with the profession and Public Health England to establish new protocols and interventions to make schools Covid-secure.

Schools have a legal obligation to protect their employees, and others, including children, from harm and therefore should continue to assess health and safety risks in the usual way through risk assessments which should be shared with staff. The government states that following the steps in the new guidance will mitigate the risks of coronavirus (COVID-19) to children and staff and help schools to meet their legal duties to protect employees and others from harm.  Based on the Trade Union current approach the risks

My rationale for sending this update tonight is to try and summarise the current guidance from the central Government and Trade Unions, however as this is an extremely complex area of employment law and these are ‘unprecedented’ times.  Therefore, as much as we would like to be able to provide a straightforward solution, this has to be dealt with case-by-case as required, but rest-assured we will be on hand to discuss any staffing concerns as they arise.

Finally, if you would like more information about the advice provided to staff by the Teaching Unions or our support on any issue, Covid-related or not, then please get in touch on 0161 850 4343.