Education Matters – Health and Safety in the return to work in the Education Sector

As unions and cross-party MPs call upon Boris Johnson to create an urgent national plan to get all cohorts back to school in England from September, along with a stark warning about the risk of an “epidemic of educational poverty”, we consider the legal framework of health and safety duties in respect of their staff with which educational establishments should be familiar.

What are your legal obligations to your employees?

When bringing their staff back to work, head teachers, academy trustees and governors
should consider:

1. an employer’s common law duty to take reasonable care for the safety of those people its operations might reasonably affect
2. their statutory duties under:

• s.2(1) Health and Safety At work Act 1974, which provides that: “it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”. A breach of this duty is a criminal offence and can also be relied upon in civil claims
• the Equality Act 2010 (Eq A):

-not to discriminate on the basis of the five protected characteristics; and
-to make reasonable adjustments for disabled people.

3. the express and implied terms of employment contracts to include an implied duty of trust and confidence.

What steps should you take to minimize legal risk?

Government guidance should be used as a basis for any action taken. As well as general guidance, there is more specific guidelines for different parts of the education sector: a planning guide for early years and childcare settings, a planning guide for primary schools, guidance for secondary school provision, guidance for further education providers.

This guidance is not set out in law so an employer cannot fully discharge its duty to its employees simply by following it. Employers must comply with their statutory and common law duties by taking a three-pronged approach: (1) assess the risks, (2) set up a safe system based on your assessment; and (3) and ensure the system is implemented.

When managing implementation, it is essential that employers communicate effectively at regular intervals, provide appropriate training, display signage where necessary, provide refresher training and/or reminders, record successes and failures providing suitable feedback and put appropriate rewards and sanctions in place. Review is really important as it may become apparent when students return that measures that seemed sensible may not work in practice. The employer’s strategy should be visible, clear and well-communicated in order to allay employees’ concerns.

As the guidance is generic and every teaching environment differs in terms of space, layout, facilities and the cross-section of staff and students, what might work for one establishment may not work for yours. You must determine whether the measures you are contemplating will reduce the risks to an acceptable level.

It is also crucial that your employees are aware of the measures and understand how they should be implemented. Not only should they see and understand the risk assessment but they need to understand how things will work in practice, perhaps by having a virtual walk through the new lay-out.

What protections do employees have when they raise health and safety concerns?

Under section 100 of the Employment Rights Act 1966 it is ‘automatically unfair’ to dismiss an employee for:

• raising health and safety concerns through […] reasonable means (section 100(1)(c))
• leaving or staying away from a dangerous workplace (section 100(1)(d)); or
• taking action to prevent danger (section 100(1)(e)).

s. 44(d) and (44e) of the ERA provide that employees must not to be treated detrimentally where they take action on any of the grounds set out above in circumstances of danger which they reasonably believed to be serious and imminent. An employee does not need two years’ service to be protected under this legislation.

We consider that returning to school in the context of the COVID-19 pandemic is likely to reach the threshold of ‘a serious and imminent’ risk. Government legislation concerned with the virus has used this wording and the courts have interpreted the concept of ‘danger’ broadly when reaching decision in previous cases. This means that an employee does not need to prove that such a danger actually existed. The test in law is whether they ‘reasonably believed’ that attending work would put them in danger. Consequently employers should be cautious about the way in which they respond to employees’ concerns about health and safety, particularly if they are considering take disciplinary action where an employee is refusing to return to work.

This article is from the June 2020 issue of Education Matters, our newsletter for our clients and contacts in the education sector. To download the latest issue, please visit the newsletter section of our website. Law covered as at June 2020.