Covid-19 Update Spring Term

Information and advice for members will continue to be updated as further guidance is published by the Government. Please use the links on the right/below for further information.

Protecting your health, safety and welfare at work is our priority

Our priority throughout the pandemic has been and remains the safety of our members at work, without putting at risk members’ jobs or pay. We have also been clear that schools and colleges can only remain open to all pupils where it is safe for them to do so. The best way to keep schools and colleges open is to ensure that they are safe and we have written to employers to insist that they must ensure that they have taken all necessary steps to ensure safety at work. The Union is also campaigning for priority access to coronavirus tests and vaccines for all staff working in schools and colleges.

Spring term FAQs

Some staff colleagues at my school have written to the headteacher to say that they will not be coming into the workplace on the advice of their unions. Is the NASUWT supporting this advice?

A direction to employees to attend work will be a reasonable management instruction and failure to comply will be a breach of contract by the employees involved with potential for the employer to take disciplinary action, implement a deduction in pay, or a refuse to pay them.

In circumstances where a union authorises or endorses or encourages its members not to attend or return to work in reliance on section 44 Employment Rights Act 1996 (ERA) (without a ballot mandate), would amount to the members being induced to breach their employment contract by the union.

In summary, a union’s conduct in supporting members who refuse to attend the workplace might be construed as, or at least alleged to be, a tortious act; inducement of breach of contract in furtherance of a trade dispute being the most obvious.

Further, members conduct in refusing to attend work, particularly where they are acting upon the union’s advice in concert with other members in the same workplace, might be construed as unofficial industrial action thus forfeiting the right to pay, or indeed, the right to claim unfair dismissal in the event of dismissal [see section 237 of Trade Union and Labour Relations (Consolidation) Act 1992].

The NASUWT understands fully the safety concerns that all members will have as a result of the continuing transmission of the coronavirus. However, it is important that all members follow the advice from the NASUWT including:

  • In the first instance, report to work as normal if you have been unable to speak with your line manager or Headteacher about the matters below.

  • Asking your headteacher to provide you with details of the school’s updated risk assessment. You should ask your headteachers to explain what additional measures the school has introduced to manage the new risks associated with the new variant of the coronavirus?

  • If you are in a vulnerable group, ask your headteacher to explain how they have taken account of your needs and circumstances as part of the school’s risk assessment?

Members should be aware that sending letters claiming serious and imminent danger without being aware of what mitigations have been put in place could place you in a very difficult situation at work and we would not ask you to take this risk without us being able to specifically assess the situation facing you.

Where staffing levels in schools are insufficient or could affect the safety of provision, members should raise their concerns with their headteacher and notify the NASUWT immediately.

Can I be disciplined by my employer if I refuse to attend the workplace?

An employer has a statutory obligation under the Health and Safety Regulations to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees. This core duty extends to ensure that the provision of plant and systems of work are safe and without risks to health, and that the provision of such information, instruction, training and supervision as is necessary to ensure the health and safety at work of employees. The duty provides protection for both the physical and mental health of employees

An employer also has an implied duty to take reasonable steps to provide a safe workplace and a safe system of work. The employer must also consider whether vulnerable employee has a protected characteristic, such as disability or pregnancy, which would lead to additional duties.

More importantly, employees have the right not to be subjected to a detriment by their employer should they undertake certain action in connection with securing their own health and safety, or the health and safety of others. These rights are enshrined in legislation (Section 44 Employment Right Act 1996). In legislation, an employee is protected against detriment when, ‘in circumstances of danger which [they] reasonably believed to be serious and imminent’ they left, proposed to leave, or refused to return to their workplace. An employee is also protected when, in the same circumstances, they take appropriate steps to protect themselves or other persons from the danger.

In the current circumstances of Covid-19, and with the particular uncertainty prevailing as to the transmission of Covid-19 in schools and colleges, it is recognised that employees would be in serious and imminent danger where appropriate arrangements have not been put in place within a workplace to prevent the transmission of the virus. It is, therefore, extremely important that members discuss with their employer the arrangements in place to ensure their health and safety at work and that these arrangements are kept under regular review by the employer, in consultation with staff and recognised unions.

Where an employer has put in place appropriate mitigations, the employer may reasonably direct an employee to attend work. Failure to comply with a reasonable management instruction could constitute a potential breach of contract by an employee, and could result in an employer taking disciplinary action against the member of staff, including a deduction in pay, refusal to pay or dismissal. However, where an employee can evidence a wholesale failure by the employer to risk-assess, and a wholesale failure to adopt safe systems of work along the lines described by the government then the employee may rely on the legislation.

What should I do if I feel unsafe about returning to work?
  • Ensure you follow the NASUWT advice in this bulletin and on the website;

  • raise your concerns with your line manager or headteacher and ask to speak with them;

  • ask for a copy of the updated risk assessment for your school/college;

  • contact NASUWT for direct advice and support at advice@mail.nasuwt.org.uk if the steps above do not resolve the issue.

Before returning to work, is there anything I should expect to receive?

You should ask your headteacher for the following:

  • A copy of the school’s risk assessment - has it been reviewed and updated and whether your employer has consulted with staff on its content?

  • Confirmation that appropriate arrangements are in place for cleaning your classroom, work area and all communal areas within the school?

  • Whether your school can confirm that appropriate 2 metre social distancing will be guaranteed at all times?

  • Whether your school has arrangements in place to ensure the wearing of face masks in all communal areas within the school?

  • Whether there are sufficient numbers of teaching and support staff in place at all times throughout the school day?

If your employer is unable or refuses to provide you with this information, you should contact the NASUWT immediately.

If there are fewer staff returning to the workplace, is it reasonable for me to be required to undertake additional duties?

No, it is neither reasonable or acceptable. Where staffing levels in schools are insufficient or could affect the safety of provision, members should raise their concerns with their headteacher and notify the NASUWT immediately.

It is also important that NASUWT members do not:

  • undertake cover for absent colleagues, except where you are contractually employed wholly or mainly to cover

  • carry out activities that are not related to the teaching and learning of pupils.

  • undertake activities that are in breach of your employer’s risk assessment or the relevant Government guidance, or has your employer failed to undertake a recent health and safety risk assessment

  • work in classrooms or other workspaces that have not been cleaned. Your school should provide you with a record of cleaning undertaken, and notify staff, as appropriate, of the dates and times when rooms have been cleaned and by whom. Classrooms, workspaces and other facilities must be cleaned between uses by different pupil bubbles/groups and when facilities are used by different members of staff during the day.

  • undertake general cleaning duties.

  • be expected to work if you do not have appropriate access to facilities to undertake regular handwashing and/or hand sanitising.

  • work in classrooms or other workspaces that are poorly ventilated or with excessive draughts or that are cold. Your school is required to confirm how it will meet the statutory regulatory requirements regarding ventilation whist ensuring that classrooms do not fall below the minimum required temperatures in which staff and pupils can be expected to work.

  • undertake close-contact activities (e.g. pupil restraint, administering first aid, etc.), without appropriate PPE. Your school should ensure that appropriate PPE is available for use by staff when required, including access to a fluid-resistant mask (FFP2 or FFP3 standard) or visor, gloves and aprons. Schools should ensure that the requirements for covid-safe working are explained fully to pupils and ensure that disciplinary procedures and how they may be used is explained fully to the school community to ensure safe working practices at all times.

  • take home pupils’ books or other materials for marking.

  • attend on site face-to-face parents’ meetings, open days or other parental consultation meetings.

What should I do if I am in a vulnerable or high-risk group?

If you are clinically extremely vulnerable, clinically vulnerable, pregnant or in any other higher risk group (e.g. BAME background, disabled or aged over 60), you should be provided with an updated individual risk assessment. The NASUWT advises that employers should ensure that staff who are at high risk of becoming seriously ill or dying from Covid-19 are provided with an individual risk assessment. Additional measures to protect vulnerable staff may include alternative deployment or working from home.

Members who suffer from certain health conditions are at higher risk of serious illness or death if they contract Covid-19. A requirement imposed by an employer to continue travelling to and attending work, to not pay them or to dismiss them due to their absence in this scenario, could amount to automatically unfair dismissal or a detriment where there is a serious and imminent danger to their health.

Where members are clinically extremely vulnerable (ie. on the NHS shielding list) the Union expects that they will not be required to be in the workplace and should stay at home/work from home. In all Tier 4 areas, in accordance with Government guidance, teachers currently must not attend the workplace and must stay at home and, where possible, work from home, and continue to be paid normally.

The fact that an employee does not fall within the prescribed list of clinically vulnerable and clinically extremely vulnerable does not mean that they are not disabled and they do not have protection from disability discrimination in this context. There may be members suffering from other illnesses which amount to a disability in terms of the Equality Act 2010 and who are more likely to suffer serious illness if they contract Covid-19, so the employers must consider the circumstances of individual employee on a case by case basis.

My school has put in place arrangements for mass testing of pupils and staff. What is the Union’s advice?

The NASUWT has long called for increased access to Covid-19 testing for pupils and staff in schools and colleges. Whilst the Union has concerns about the accuracy of lateral flow tests (LFT), the greater deployment of testing as an additional mitigation measure is to be welcomed.

Unless a teacher has a specific contractual term to the contrary, schools must not expect teachers to carry out the tests. The vast majority of teachers and school leaders, including those employed under the School Teachers’ Pay and Conditions Document, cannot be instructed to undertake medical procedures.

It is critical that the school’s risk assessment and virus mitigations are not relaxed where weekly or serial testing is employed. All existing precautions should continue to be in place.

Teachers must not be required to undergo testing against their will. Testing is an offer, not an obligation. Teachers must also not be forced to take a test to avoid self-isolation - it is a personal choice.

If any members have concerns about the implementation of weekly and/or serial testing, they should speak to their line manager or NASUWT Representative in the first instance. If members still have concerns, they should contact the NASUWT for further advice.

Do the requirements for self-isolation still apply where someone has been in close contact with a person who has tested positive for Covid-19?

Yes. Your school must continue to follow the national guidance and requirements on self-isolation. Schools should insist that where staff or pupils display Covid-19 symptoms or test positive, they should self-isolate in accordance with the requirements of the national guidance. Where a person has been in close contact with someone who has tested positive for Covid-19, either 48 hours prior to developing symptoms or 48 hours after the person developed symptoms, they should also be required to self-isolate. Your employer has a duty to protect the health and safety of other employees, so if there is an identified risk that you may have been exposed to Covid-19, you should be kept away from the workplace until the risk has passed.

Am I still entitled to a lunch break?

Teachers are entitled to a reasonable lunch break and other breaks away from the pupils. This is an important safeguard for staff physical and mental health and wellbeing. Where teachers remain with pupils at all times during the day, they are not having a break. It is not appropriate for an employer to make no provision for teachers to have a break away from the pupils.

On returning to the workplace, the NASUWT advises all members to ensure that they:

  • have been provided with a copy of the school’s revised/updated Covid-19 risk assessment, which should contain all of the safety measures your employer is putting in place. Risk assessments should be the subject of consultation with staff, and if on reading the risk assessment you have any concerns about the measures being proposed or believe that something has been omitted, you should raise this with your headteacher immediately and contact the NASUWT for advice;

  • are clear about and observe at all times the safety procedures;

  • contact the NASUWT to report any incidents where the Covid-19 safety arrangements are breached or the employer fails to implement them;

  • regularly review the NASUWT Coronavirus Hub on the Union’s website, which is kept up to date with the latest advice and guidance and FAQs, and keep a check on their emails for the Union’s Covid-19 updates.

All members should seek advice from the NASUWT if they have concerns about any whole-school or employer-wide practice that is impacting adversely on their workload and working conditions.

Further information, updates and advice along with other Frequently Asked Questions can be found at the NASUWT Coronavirus Hub.