Employment law and Covid-19: The key issues

Written by: Jane Hallas | Published:
Image: Adobe Stock

With a new term upon us, where do we stand in relation to our school staff, vaccinations, self-isolation and other key Covid-related issues? Employment law expert Jane Hallas offers her reflections


The start of a new academic year gives headteachers opportunity to reflect on what has happened during the last year or so and consider how to manage similar issues going forward. As such, what challenges can headteachers expect in the coming weeks and months?


Vaccinations

The good news is that all adults over the age of 18 should now have been offered the opportunity to have the vaccination and the majority of staff should now be double-vaccinated.

It is likely that legislation will be in place by October requiring care workers to be vaccinated. It doesn’t appear as if the education sector will be subject to this requirement.

Of course, all employers are under a duty to protect the health and safety of employees and provide safe systems of work under health and safety legislation. An employer will be expected to have undertaken a risk assessment to identify what steps need to be taken to meet that obligation. Appropriate control measures could include employees being vaccinated given that this is one of the clearest ways of protecting the individual from serious illness from Covid, as well as testing.

Schools may be considering introducing a policy that all staff should be vaccinated but implementing this could be problematic, particularly if there are other less intrusive measures that can be taken to minimise infection. Much will depend on whether a school can demonstrate that this is a reasonable control measure, whether the provision of education will be severally affected if a lot of staff continue to go off sick, and if they can override human rights concerns.

Article 8 of the European Convention of Human Rights protects the right to private and family life. The right for an individual to choose whether to be vaccinated is likely to fall within this right. It is possible to interfere with this right “in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

Therefore, if there is real need to protect health or economic wellbeing, that may be capable of overriding the Article 8 right to private life. It requires a careful balance between the rights of the individual and employer (which could also include the pupils).

Clearly one aim of the vaccine is to protect the individual who is vaccinated but there is also a growing body of evidence to suggest that vaccines also reduce transmission. If this is the case, it adds weight to the argument that vaccination is a necessary control measure.

Alternatives to a compulsory policy are to continue with other control measures as identified in the risk assessment undertaken by the school, exploring with the employees who refuse the reasons why they are not willing to be vaccinated and looking at trying to minimise both the risks to individuals as well as the impact on children’s education.

Involving unions and health and safety committees is a good idea to try and build consensus about vaccinations being the way forward and supporting staff with anxieties.

Remember that whenever you obtain information about an employee’s vaccination or testing status, you will be processing special category personal data (formerly known as sensitive personal data). It will be important to comply with the Data Protection Act 2018 and the General Data Protection Regulation (GDPR) in this regard.


Self-isolation

During the summer term, so many staff and pupils were being told to self-isolate that many staff spent more time at home than in school. It is hoped that with greater vaccination take-up, and growing immunity, there will be less need for staff to self-isolate.

It is of course advisable for schools to continue with their current arrangements where possible and to be ready to offer remote teaching and working from home if staff are required to self-isolate.

However, the latest guidance for schools, last updated on August 21 (DfE, 2021b), explains that if individuals are fully vaccinated or are aged below 18 and a half years, they “are not required to self-isolate if they live in the same household as someone with Covid-19 or are a close contact of someone with Covid-19”.

The guidance adds: “Instead, they will be contacted by NHS Test and Trace, informed they have been in close contact with a positive case and advised to take a PCR test.”

The guidance also confirms that contact-tracing requirements for schools ended on July 18: “Close contacts will now be identified via NHS Test and Trace and education settings will no longer be expected to undertake contact tracing.”


Pregnant staff

Particular care needs to be taken where staff are pregnant. As always, schools should be ensuring that they carry out a pregnancy risk assessment under the Management of Health and Safety at Work Regulations 1999. A referral to Occupational Health may also be advisable if there are particular underlying health issues or concerns.

The Royal College of Gynaecology and the Royal College of Midwives’ guidance on coronavirus in pregnancy (2021) should be used as the basis for a risk assessment. If the risk assessment identifies that it is not safe for them to continue working, they should either be given alternative work to do in a safe environment, such as working from home, or be medically suspended on full pay.

For those who are in week 28 or more of their pregnancy or have underlying health conditions, schools are advised to take a more precautionary approach. The current guidance is that social distancing rules should be followed, and if that isn’t feasible, then they should work from home or be medically suspended.


Travel

Many schools put in place a Travel Policy before the end of last term, urging employees to book foreign holidays early on in the school holidays rather than later, in case they were required to self-isolate on their return. Hopefully teachers (in particular) paid heed to this, and therefore everyone will be back ready to work for the start of term.

Those who have had to self-isolate because the rules around self-isolation changed after they had booked their holiday should be asked to work from home until they are able to attend school. If you had a policy which made it clear that if staff booked a late holiday knowing that they would have to self-isolate on their return and would not be entitled to be paid on their return, you can implement that policy. However, care should be taken to check what your policy said, when the holiday was booked, and what the rules were at the time of booking.

If you haven’t developed such a policy yet, it is a good idea to do so before the autumn half-term to encourage staff to think through the potential consequences if they are unable to return to school.


Rising conflict

With the increased pressures brought about by the pandemic, you have likely seen an increase in conflict with staff. This may be between peers, or managers and their direct reports.

While most employees will know that they can raise a grievance if they are unhappy about something at work, grievances do not always get to the heart of the problem and resolve underlying issues. They are often time-intensive and lead to more conflict. In schools, they are often very long-winded, and involve the governing body or trustees too.

It is a good idea to review current policies and procedures and determine whether they are fit-for-purpose. Consider having alternatives in place so that formal grievances are used as a last resort. Early intervention by managers, who are able to address and resolve issues early on, is usually much more effective, but that takes time as you must develop managers and train them in dealing with conflict.

Alternatives such as offering mediation, or a facilitated discussion, can also be successful ways of dealing with conflict and it is worth exploring whether these could be introduced to try and help minimise conflict.


A final word of warning

Given the ever-changing coronavirus situation, the position in relation to some of the topics above may have evolved further since the time of writing, so it is important to always check the latest government guidance (DfE, 2021a).

  • Jane Hallas is head of team, education at employment law, health and safety and HR support firm Ellis Whittam: https://elliswhittam.com


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