What’s the best way to respond if your staff refuse to return to work because of concerns about coronavirus?

On January 4^th the Prime Minister announced that England would go into a third national lockdown. The message was clear – everyone needed to stay at home to defeat the virus. And, despite reassuring the public on Sunday that schools and colleges were safe, less than 48 hours later, they were “vectors of transmission” and needed to close for all pupils other than those who were vulnerable or whose parents were key workers and for those sitting exams this month. Alternative provision, special schools and nurseries would remain open.

The current infection rates make depressing reading. According to government data, the number of people who had tested positive for coronavirus over the previous seven days was 366,436 – a 48% increase from the previous week. Cases have risen again given the Christmas day relaxation in the rules. Perhaps the most alarming news though was that the new Covid variant transmits more easily than other strains and has resulted in the disease circulating in some areas very quickly.

Immediately following the government announcement, six unions with members in schools/colleges – GMB, NAHT, NASUWT, NEU, UNISON and Unite – published a joint statement which called for a pause in the reopening of schools. They argued that schools were unsafe and bringing all pupils back into classrooms while the rate of infection is so high is exposing school staff to serious risk of ill-health and could fuel the pandemic.

According to data compiled by the largest teaching union, the NEU, around 6,000 of its members refused to return to their schools on the first day of term. Unions provided template ‘section 44’ letters which its members could download to give to their employers to explain why they can’t return to the workplace.

Are schools and colleges safe places to work?

Despite the lockdown, school heads and college principals will need some teachers and support staff to continue to go into work to teach those pupils who need to be educated in school or college. Plus, the government has indicated that public exams and vocational assessments, which are scheduled to take place in January, will go ahead as planned ‘where schools and colleges judge it right to do so‘.

This will increase the numbers of students in the building and increase the number of staff required to invigilate etc. It’s therefore likely that further members of staff will serve section 44 letters on their employer.*

Legal position

Under sections 44 and 100 of the Employment Rights Act 1996, employees can bring employment claims if they are subjected to a detriment (such as being suspended or having their pay deducted) or are dismissed for exercising their right to leave their workplace. This protection gives them the right to refuse to attend work; to insist on certain safety measures or take other positive steps to protect themselves and others from danger.

The employee must have a ‘reasonable belief’ that their workplace poses a ‘serious and imminent threat’ to them, or to others – including members of the public and their own families. It’s possible that travelling to and from work – particularly on public transport may also count.

An employee’s right to refuse to work or take other appropriate steps under section 44 of the ERA depends on the reasonableness of their own view about the danger, based on what they know and have been told – particularly via official advice.

Anyone who has one of the medical conditions that makes them vulnerable to becoming seriously ill or dying from coronavirus is likely to be able to establish a reasonable belief in this context – at least until they are vaccinated. But that doesn’t mean that anyone who doesn’t have an ongoing medical condition won’t also have a reasonable belief that their workplace poses a very real risk to their health – particularly given the seriousness of the government’s messaging. Plus, according to the TES, the NASUWT has published data that indicates that teacher Covid rates are up to 333% above the national average.  

Practical advice

We recommend that you:

1. Carefully consider whether you should exclude some members of staff from attendance rotas. The government has reintroduced the shielding programme; therefore anyone who receives a new shielding letter must remain at home. But you’ll also need to undertake individual risk assessments for staff with health problems or who are pregnant.
2. Update your Covid risk assessments to reflect the much higher transmission of the new variant after consulting with your health and safety reps’. How many staff do you need on site? What measures can you take to mitigate risk? The government hasn’t yet updated its Guidance for schools or colleges, to reflect the new lockdown rules but we expect it to do so soon.

3. Explain how you are controlling risks and communicate the latest official guidance. Emphasis that you welcome feedback and establish clear channels and processes for dealing with employee complaints about workplace safety.
4. Deal with any concerns about health and safety on an individual basis. If they have previously worked without complain in your school/college find out, specifically, why they don’t believe it is safe now. Ask them what additional measures could be in place to help and decide if these are feasible. Even if you can’t immediately resolve the issue (and persuade them to return to work) maintain a dialogue and make sure that you advise them of any changes either in your approach (such as introducing lateral testing) or in government guidance which, you believe, ameliorate their concerns.
5. You may be able to use an assessment tool to determine a person’s vulnerability to dying if they contract Covid. An OH colleague has recommended Alama which provides a medical risk assessment to determine (on an average basis) an individual’s vulnerability and risk of death if they contract Covid and can be helpful to reassure staff that it is safe for them to return to work. The tool is based on evidence that is evolving and is under constant review. But, it’s a medical platform and is intended to be used as part of an occupational health assessment of fitness for work.

6. Do not discipline, refuse to pay or dismiss anyone who sends you a section 44 letter before taking advice.

Vaccinations

A petition – which seeks to prioritise vaccinating teachers has received over 100,000 signatures and will be debated by MP’s in due course. If teachers are prioritised for vaccination, schools and colleges, they are unlikely to believe that their workplace poses a real danger to their health. 

So far, over 1 million people have been vaccinated against Covid in the UK. But the pace of vaccinations is still quite slow and will have to be accelerated if we are going to be able to vaccinate the most vulnerable by mid February. 

Jo Moseley, Senior Associate in the Employment Team at Irwin Mitchell