Should clinically extremely vulnerable staff now return to school?
Considerations for school employers following changes to working from home and shielding advice.
Schools have clearly been ahead of the curve in enabling staff to attend the workplace, and indeed have been working tirelessly to create a safe environment for staff and students throughout the pandemic. However, the wider reopening of schools from 8 March and recent changes to the law and Government guidance will now mean that schools are encouraging previously shielding staff to attend the school site.
The changes mean that clinically extremely vulnerable (CEV) staff can now attend school in some circumstances. In reality this will not always be a simple transition. In this article, we consider the recent changes and the key considerations for school employers.
Changes to “work from home” rules and shielding guidance
Since the end of March, the rules on working from home have changed. The previous requirement to work from home unless it was reasonably necessary to attend the workplace has gone. This has been replaced with guidance that individuals should “continue to work from home where you can. If you cannot work from home you should continue to travel to your workplace.” (See the Going to Work section in the latest Government Coronavirus guidance on what you can and cannot do.)
On 31 March, shielding advice was paused. The latest update to DfE operational guidance states: “CEV individuals are no longer advised to shield but must continue to follow the rules in place for everyone under the current national restrictions. Staff in schools who are CEV will be advised to continue to work from home where possible, but if they cannot work from home should attend their workplace.”
What does the lifting of the legal requirement to work from home mean?
Between 6 January and 29 March 2021, individuals were only permitted to attend work where it was “reasonably necessary…for the purposes of work”. This has now changed, as the previous order to ‘stay at home’ unless you have a reasonable excuse has been lifted.
Although attending the workplace when it is not reasonably necessary is no longer a breach of the law, government guidance states that individuals should continue to work from home “if you can”. The guidance encourages employers to take every possible step to facilitate employees to work from home, including providing suitable IT and equipment to enable remote working.
Unfortunately, the guidance does not clarify what is meant by “work from home if you can”. Previous versions of government guidance have stated that everyone who can work “effectively” from home should do so, which some interpreted to mean that people could attend their workplace if, for example, they worked more efficiently there compared with at home, perhaps due to not having adequate facilities at home, or due to distractions.
Because the new guidance omits the word “effectively”, it seems to suggest that those who can work from home should do so, even if this is less efficient than working from the workplace. If that is the case, someone who came to work because, for them, it was more efficient, even when they were capable of working from home, might appear to be in breach of the guidance.
Health and safety considerations for school employers
Schools and academy trusts of course still need to be sure that there are rigorous Covid risk assessments in place for their settings. Risk assessments should be regularly reviewed, consulted on with employee health and safety representatives, and refreshed in the light of changing circumstances, including changing infection rates and levels of vaccination.
It continues to be essential that all reasonable mitigation measures have been made to limit the risks of transmission in schools, following the most recent DfE guidance on safe working in education.
Teaching unions have called for individual risk assessments to be carried out for staff with particular vulnerabilities to the virus. Working through a risk assessment alongside a member of staff who has concerns about returning to work and planning for tailored mitigation measures can help to build staff confidence and allay concerns.
School employers should not overlook the concerns of staff members who continue to work from home and who indicate that this is having a detrimental impact on their mental health. This may necessitate allowing an employee to attend work, even where they can feasibly work from home. Requests to be physically present at work should be carefully considered on a case by case basis and a record kept of the decision made and the reasons for it.
Clinically extremely vulnerable members of staff
Until 31 March 2021, government guidance strongly advised individuals identified as clinically extremely vulnerable to work from home because of the risk of exposure to the virus. If a CEV person could not work from home, they were advised not to attend work and to speak to their employer about taking on an alternative role or change of working patterns on a temporary basis to enable them to work from home where possible.
The new Government guidance for clinically extremely vulnerable people is similar to the guidance for everyone else, in that they should continue to work from home where possible, but if they cannot work from home, they can (as opposed to should) now attend the workplace. The guidance states that employers are required to take steps to reduce the risk of exposure to Covid in the workplace and should be able to explain to staff the measures they have put in place to keep them safe at work.
If they have not already done so, employers should discuss with clinically extremely vulnerable employees proposals for their return to work. If a vulnerable employee cannot work from home, they should only be permitted to return to the workplace where the risk assessment indicates it is safe for them to do so. Depending on the risk assessment, this may require additional measures to keep clinically extremely vulnerable staff safe. For example, this may include offering them, on a temporary basis, an alternative role with reduced face to face working, or adjusted working patterns.
How to work with clinically extremely vulnerable staff who do not want to attend school
- Always begin by talking to staff and their representatives so that their concerns and circumstances can be properly understood and taken into account.
- Explore alternative ways of working, engaging the member of staff in this discussion as they may be best placed to suggest creative and workable solutions.
- Consider carrying out an individual risk assessment as part of this discussion.
- Consider a phased return with a gradual increase in physical attendance / face to face work.
Taking action against employees who refuse to attend – the legal risks
Could a school employer take disciplinary action for a refusal to attend the school site for work?
Because of the legal risks of taking action against an employee on this basis, we recommend that schools first try to resolve issues through discussion and encouragement rather than moving to disciplinary action. Only after considering the particular circumstances and concerns of the member of staff should any formal step be taken, such as following a disciplinary procedure.
Disciplining or dismissing an employee for a refusal to attend work in these circumstances is likely to lead to grievances, and schools and academy trusts could face employment tribunal claims for unfair dismissal, constructive dismissal, discrimination and health and safety-related claims after taking such action. Many of these claims can be brought without two years’ service and have no cap on the financial compensation awarded.
Where an employee is dismissed because of their refusal to attend school, there is a risk of unfair dismissal claims. The tribunal will consider whether the decision to dismiss was fair in all the circumstances, including the personal circumstances of the employee and the school’s need for the employee to attend.
CEV employees are very likely to have a disability for the purposes of the Equality Act 2010. There is therefore a risk of discrimination claims where action is taken against a member of staff for a refusal to attend and that refusal is connected with a disability.
Indirect discrimination claims could also be brought where employees argue that a requirement for all staff to return to face to face work puts them at a particular disadvantage, for example because of a disability. Staff who are older, from BAME backgrounds, and those who are pregnant may also argue that this requirement indirectly discriminates against them because of their increased risk from the virus.
Indirect discrimination claims can be defended if the policy or requirement in question can be shown to be a proportionate means of achieving a legitimate aim. School employers would need very sound reasons for imposing a blanket requirement on staff to return to school, supported by documentary evidence of those reasons. These might include the impact on student experience and wellbeing, the effects on educational outcomes, the increased pressures on staff who attend school, and the costs of cover for face to face roles. However, where the employee has good personal reasons for refusal and the discriminatory impact on the employee is significant, it is unlikely that an employer would be able to justify the requirement.
Employees may seek to bring harassment claims in relation to a protected characteristic, arguing that the school’s response to their concerns about returning to work was unwanted conduct which created a hostile, intimidating or humiliating atmosphere for them.
Discrimination and harassment claims can be expensive to defend and, if successful, can lead to uncapped compensation awards. In the case of teachers who do not return to work, this can include significant loss of earnings and pension loss claims. Tribunals can also include injury to feelings awards for the distress caused to a claimant.
Health and safety related claims
Where employees are subjected to a detriment because they refuse to attend work due to a fear that they or someone else is in serious and imminent danger, there is an additional risk of claims. If the employee has been dismissed for this refusal, there is a risk of a claim for automatically unfair dismissal. For further details, please see our previous article: ‘Refusing to work because of fears about Covid-19’ (15.01.21), which is available from our website.
We strongly recommend that school employers seek legal advice before taking any action against a member of staff for a refusal to attend school linked to a vulnerability to Covid-19.
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The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.