Friday 1 January 2021

Fully open schools are not safe environments for staff or students - apply Section 44

A dangerous new situation

Covid-19 transmission rates and the pressures on the NHS are continuing to rise across England and Wales. The fact that so many Local Authorities have been placed under Tier 4 restrictions is an acknowledgement of the dangerous situation facing school staff and school communities, particularly given the greater transmissibility of the new variant of the virus. While vaccination programmes are starting, we still face a critical period where many more deaths may occur in the meantime.

Despite these changed and worrying circumstances, the Government continues to claim that primary schools in most areas are still able to open fully at the start of term. Yet the latest data from the ONS shows that school age children, including primary aged children, show the highest infection rates of any of the age demographics analysed by them. A range of scientific experts are making clear that maintaining fully open schools will lead to further transmission within education settings and the new variant not being controlled.

Far from resolving the situation, the introduction of a mass testing programme in schools introduces a further set of health and safety issues. The Government have failed to provide sufficient resources, staffing and advice and headteachers will have been unable to consult on the safety of the provision being set up within their schools. On top of this, the reliability of the lateral flow testing, particularly when it is not conducted by health professionals, is highly questionable. This does not provide any grounds for relaxation of isolation protocols within schools as Ministers have been claiming.

The legal responsibilities on school and college employers

While Ministers may be prepared to ignore the scientific evidence, employers' legal responsibilities under the Health & Safety Act 1974 to ensure the health, safety and welfare at work of all employees, and those who may be affected by the employers’ actions, cannot be ignored.

The Management of Health & Safety at Work Regulations 1999 requires employers to undertake a suitable and sufficient assessment of the risks to health & safety of employees and others, such as pupils and parents, affected by the employer’s conduct. This includes having appropriate procedures in place in the event of a serious and imminent danger, the virus being such a threat as set down in the Health Protection (Coronavirus, Restrictions) Regulations 2020.

Further, and considering the new situation outlined above, the Regulations make clear that:
  • Any assessment shall be reviewed by the employer or self-employed person who made it if there has been a significant change in the matters to which it relates;
  • Every employer shall consult safety representatives in good time with regard to the introduction of any measure at the workplace which may substantially affect the health and safety of the employees the safety representatives concerned represent;
  • Every employer shall, save in exceptional cases for reasons duly substantiated (which cases and reasons shall be specified in those procedures), require the persons concerned to be prevented from resuming work in any situation where there is still a serious and imminent danger.
School staff cannot be expected to attend their workplaces at the start of term

Through no fault of their own, school employers are simply not in a position to be able to carry out their duties to guarantee a safe place of work to employees at the start of term and neither will they have been able to consult with union representatives about the measures they intend to put in place to ensure their health and safety.

In these circumstances, employers should not require staff in any school or college setting to resume work in school at the start of term, not least those in primary schools that are being expected to return to full classes on Monday in most parts of the country outside London. Like secondary schools, they should not be teaching face to face more than keyworker and vulnerable children - and even then only in properly risk-assessed conditions - for the first weeks of the new term. Instead, most staff should be working from home to support their pupils safely.

Before staff can resume work in their workplaces, consultation must take place and agreement should be reached at a school and Local Authority level that addresses the changed circumstances, namely:

i) the increased transmission of the new variant of the virus within school and college settings.

ii) the protocols and practices necessary to carry out reliable mass testing on site.

Staff in all settings, including special, nurseries and primary schools, should be advised of the fact that employees are protected from detriment or dismissal should they, in circumstances of danger which they reasonably believe to be serious and imminent, leave (or propose to leave) or (while the danger persists) refuse to return to their place of work or any dangerous part of the place of work under sections 44 and 100 of the Employment Rights Act 1996. 

This is a message which needs to be got out loud and clear to all school staff this weekend to protect the safety of staff and the safety of our school communities.

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