Teachers Pay, Brexit, KCSiE…and Covid 19

22nd September 2020

• Teachers Pay and School Pay Policy
• Allegations of abuse against supply teachers
• Brexit – upcoming changes in ‘Freedom of Workers’
• COVID and pregnancy

Teachers Pay and School Pay Policy

In previous correspondence we have provided schools with an update on the Government’s decision on the STRB recommendations which has been delayed this year.  Understandably, we have received many questions about updating the school pay policy with the new teacher pay scales as this would usually be completed at this time of year.  However, the teachers’ pay order must be laid before parliament before it is finally agreed and we are advised that the timescale for this is currently set for October.  As this timescale is different from normal, we advise talking to staff about the delay but reassuring them that any pay decision will be backdated, as usual, to 1^st September 2020.  As soon as we have confirmation that ‘The Document’ has been agreed for 2020 then we will be in touch immediately.

Keeping Children Safe in Education: Allegations of abuse against Supply Teachers

As promised, this update provides more detailed information about the changes you will need to make in relation to the section in KCSiE 2020 on ‘Managing Allegations Against Supply Teachers’.

From a HR perspective, it can be a difficult balance…in all other cases you are advised to ensure there are clear boundaries between employees and ‘workers’ however it is clear that schools must take responsibility for managing allegations against Supply Teachers although you are not their employer in law.

The key areas in the KCSiE 2020 document are, the safer recruitment and the managing allegations sections, which both refer to the particular risks that may arise when using supply teachers. The relevant paragraphs are as follows:

• Where there is an allegation about a supply teacher (see paragraphs 213 – 217), the KCSIE guidance says, ‘Whilst schools and colleges are not the employer of supply teachers, they should ensure allegations are dealt with properly. ‘In no circumstances should a school or college decide to cease to use a supply teacher due to safeguarding concerns, without finding out the facts and liaising with the local authority designated officer (LADO) to determine a suitable outcome’ (paragraph 215).
• The school or college will usually take the lead [in any investigation] because agencies do not have direct access to children or other school staff, so they will not be able to collect the facts when an allegation is made, nor do they have all the relevant information required by the LADO as part of the referral process. (paragraph 216)
• Governing bodies and proprietors – who supervise, direct and control supply teachers whilst they are working at a school – should discuss with the agency whether it is appropriate to suspend or redeploy the supply teacher to another part of the school whilst investigating the allegation. Schools should inform the supply agency of its process for managing allegations, and agencies should be fully involved and co-operate with the LADO’s enquiries. Schools are expected to handle the allegation as they are best placed to collect facts and information required for the referral process (paras 214 to 217).

The changes have been made due to cases in the past where schools have stopped using a supply teacher when allegations have been made and, in many instances, no process has been followed. There is now a requirement to do so in order to safeguard other schools.

What schools need to do:

• In order to ensure expectations are understood and that the supply teacher knows the school policy, it is advisable for you to discuss with your supply agency the processes they have put in place to ensure that supply teachers has read the School’s Safeguarding Policy and Code of Conduct and signed them to confirm they have done so before they first start working at the school.
• Additionally, we advise you to discuss the potential for ‘suspension’ and ensure the school is not liable for salary payments during this time.
• Update the schools Safeguarding Policy to reflect the changes. Your Local Safeguarding team should be able to provide you with suitable wording.

Brexit – Freedom of Workers

BREXIT Freedom of Movement ends on 31^st December 2020 and new laws around migrant workers will come into place. This will impact schools with employees or new recruits from overseas.

EU Citizens living in the UK prior to 31^st December 2020 – Any EU citizen that has lived in the UK prior to 31^st December 2020 will be able to rely on their EU passport or National Identity Card until 30^th June 2021. However, EU citizens in this category and their families must make an application EU Settlement Scheme (EUSS)before 30^th June 2021 and be awarded either pre-settled or settled status in order to retain the right to live and work in the UK.

Non-EU Nationals living in the UK prior to 31^st December 2020 – Non-EU nationals cannot work in the UK unless they have a visa and are ‘sponsored’ by their employer. Therefore, employers wishing to recruit non-EU nationals must have a sponsor licence which can be applied for online. Relevant fees must be paid.

EU Citizens coming to live in the UK from 1^st January 2021 – The two main work visas for overseas migrants will be a Skilled Worker visa or a Tier 2 (ICT) visa:

• Skilled worker visa– This route is available to highly skilled migrants with a job offer and who are able to speak English to an acceptable standard. The level of skill required to perform the role must be at RQF Level 3 or above, meaning A-level or equivalent, and the role must meet the minimum salary threshold (£25,600 or the going rate for the job they’ve been offered, whichever is higher, subject to some limited exceptions). There will be exceptions to this – for example certain roles in the education sector. Where an exception applies, the worker must still be earning a minimum of £20,480. After five years in the UK under this visa the worker can apply for settled status.
• Tier 2 visa (ICT)- This route is available to highly skilled migrants who are moving from an international branch/subsidiary of a company abroad to one within the same company in the UK for a period of up to five years (or nine years if they earn over £120,000 a year). Migrants must be paid a minimum salary (£41,000 for long-term staff or £23,000 for graduate trainees) or the going rate for the job – whichever is higher. This route does not lead to settlement, however, after 5 years a worker can apply for a skilled worker visa if they meet the criteria.

What schools need to do:

• If you have employees who are EU citizens and are living in the UK before 31^st December 2020 you should discuss and support them with applying for settled status. Please see guidance here.
• You will need to request work visas for any employees recruited as of 1^st January 2021, if the new recruit has not provided evidence of settled status. As part of your Safer Recruitment checks you should see the original visa and take a copy for New Starters HR file. The visa details also need to be added to your Single Central Records.
• You may wish to consider whether it would be beneficial for them to apply for a sponsor licence, bearing in mind, the application cost which includes the need to pay a fee to assign a Certificate of Sponsorship to the migrant (£199) and the Immigration Skills Charge (£1,000 per migrant per year).

COVID-19 and pregnancy

The Governments guidance on full opening of schools, updated on 17^th September 2020, provides a section about ‘staff that are pregnant’.  It states as follows:

Pregnant women are in the ‘clinically vulnerable’ category and are generally advised to follow the above advice, which applies to all staff in schools. Employers should conduct a risk assessment for pregnant women in line with the Management of Health and Safety at Work Regulations 1999 (MHSW).

The Royal College of Obstetrics and Gynaecology (RCOG) has published occupational health advice for employers and pregnant women. This document includes advice for women from 28 weeks’ gestation or with underlying health conditions who may be at greater risk. We advise employers and pregnant women to follow this advice and to continue to monitor for future updates to it.

When you reach the OH advice referred to in the government update (see above) you will find that it has been archived however it contains an important ‘note on archiving the OH advice document’ which provides the following clinical advice:

Our clinical advice is that social distancing is particularly important for all pregnant women who are 28 weeks and beyond, in order to lessen their risk of contracting the virus. For women with other medical conditions in addition to pregnancy, this should be considered on an individual basis.

This clinical advice must be considered by your employer as part of your workplace risk assessment. The remaining factors involved in reaching a decision about your safety at work must be evaluated in an individualised risk assessment, conducted by your employer, that is individual to you and your employment setting. Employers are guided on this by sector specific advice published on the UK government Working safely during Coronavirus (COVID19) and NHS Employers websites. The RCOG is not able to comment or advise on these aspects as it is outside our area of expertise.

Employers have a responsibility to protect the health and safety of pregnant women who are working. This responsibility is laid out in the Management of Health and Safety at Work Regulations 1999. Under these regulations, employers are required to carry out risk assessments. If there are risks, your employer must take reasonable action to remove the risks by altering your working conditions or hours of work; by providing suitable alternative work on the same terms and conditions; or by suspending you on full pay (if there is no suitable alternative work).

It is clear clinical advice from The Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and the Faculty of Occupational Medicine that schools need to ensure that pregnant women, who are 28 weeks or beyond, are able to socially distance in accordance with government guidance.  If you have any pregnant employees, in this category, who are working in school and you would like to discuss this further then please get in touch.

For further guidance, please contact your Heads HR Consultant on 0161 850 4343.