vwv.co.uk | Offices in London, Watford, Bristol & Birmingham

Reopening schools –Understanding Liabilities,

Responsibilities and Practicalities

Yvonne Spencer, PartnerAllison Cook, Partner

@vwvlawfirm

Agenda

Topics to be covered today:

• Where does responsibility lie for re-opening schools

• Safeguard and promoting the welfare of children

• Getting staff back in to the workplace• Dealing with Health and Safety concerns• Managing detriment• What happens where employee or

student has Covid 19 Symptoms?

Department for Education guidance

• Early years

• Primary Schools

• Secondary Schools

• Guidance for parents

• Union Guidance

Where does responsibility lie for reopening Schools?

• Is this an operational or a strategic decision?

• A range of views?

• The roles of governing bodies, proprietors, employers and Heads

Safeguarding and promoting welfare of pupils

• Pupil welfare risk assessment approach

• Amending policies and procedures

• Specific duties for vulnerable pupils

Pupil welfare risk assessment approach Derives from ISSRs January 2015. The proprietors of independent schools and academies have also been required to ensure that the welfare of pupils at the school is 'safeguarded and promoted by the drawing up and effective implementation of a written risk assessment policy.'

The extension of the concept of risk assessment for pupil welfare, lends well to ensuring the safeguarding and promotion of pupil welfare is paramount.

Pupil Welfare Assessment Annex Health and Safety

• Covid-19 assessment signed off by proprietor / employer

• Staff training provided on additional risks, first aid, medical policies updated inc suspected cases of Covid-19

• Cleaning arrangements and RIDDORreporting

Pupil Welfare Assessment Annex Safeguarding

DfE 1 June appropriate time to review. Annex produced for Covid-19, including:

• DSL arrangements on site

• Updated to reflect new risks

• Relevant advice from the local safeguarding partners

Pupil Welfare Assessment Annex

• Continuing to protect vulnerable children and the mental health of the school’s community

• Reflect how DSLs will support staff and children regarding new concerns

• Support to children and families who have not yet returned to school

• The school’s approach to protecting vulnerable children

The behaviour policy

Government guidance

“Ahead of opening for more pupils, schools will need to update their behaviour policy to reflect the new rules and routines, and communicate these changes to staff, pupils and parents.”

The behaviour policy annex

To include • Altered routines - arrival /departure • Expectations on hygiene (catch it, bin it, kill it) • Rules about coughing and spitting • Rules about equipment hygiene• Moving around the school/ break times/ play

areas • Reasonable adjustments for pupils with

challenging pupil behaviour • Rules on who pupils can socialise with at

school • Use of toilets • Modifications to rewards and sanctions • Amend rules - uniform and hairstyles

Pupil Welfare Risk Assessment Annex

SEND

"The school is aware of additional specific guidance that is published in relation to risk assessments of pupils with SEND"DfE Guidance updated 26 May

Pupil Welfare Risk Assessment Annex

SEND - could include • the potential Covid-19 health risks to these

pupils due to underlying conditions;• the risk to these pupils if some or all elements

of their EHC plan cannot be delivered for the time being

• the risk if they cannot be delivered in the normal manner or in the usual setting and the opportunities to meet needs in a different way temporarily, for example, in the home or online;

• the ability of the pupils' parents or carers or home to ensure their health and care needs can be met safely week-round or for multiple weeks, bearing in mind the family’s access to respite;

Pupil Welfare Risk Assessment Annex

• the potential impact to pupil wellbeing of changes to routine or the way in which provision is delivered;

• any safeguarding risks for pupils with a social worker if not in school and the need to support care placements for looked-after children;

• any other out-of-school issue or vulnerability, for example, a child or young person becoming involved in dangerous behaviour or situations (including the risk of exploitation);

• their progress over time.

Pupil Welfare Risk Assessment Annex

• On line safety policy amended

• Mental health policy amended (if the school has one)

• Additional support: whole school; digital support; and individual support

Thinking ahead after re-opening

• September further PWRA

• SEND assessments and on-going duties

• Mental health and welfare

• Exclusions, Admissions, Complaints

Employment Law issues -Practical steps• Carry out an audit to find out which of

your staff will be available when the School plans on reopening

• Carry out risk assessments – establish safe working practices in agreement with employees

• Communicate effectively with staff to provide reassurance around the measures taken

• Be clear on the behaviours expected on a return to the workplace. Try and understand and address any reluctance to return to work

Dealing with reluctance to return to the workplace

• Clinically extremely vulnerable

• Clinically vulnerable

• Living with a family member/dependant who is vulnerable

• Dealing with anxiety

Health & safety –Employment Rights Act 1996

• S.44 the right for all staff to have a safe working environment – not be subject to a detriment

• S.100 prohibition from dismissal in circumstances where they reasonably believe that there is a risk of serious and imminent danger.

Health and Safety -Employment Rights Act 1996

3 main elements:

• They must have a “reasonable belief”;• The risk must be of “serious and

imminent danger3• There must be a danger to “health and

safety”

Managing the workforce

What can employers reasonably do where staff refuse to return:

• Further consultation;• Agree a period of unpaid leave.

This could become unmanageable as more children return to their setting.

vwv.co.uk | Offices in London, Watford, Bristol & BirminghamLawyers & Parliamentary Agents

Allison CookPartneracook@vwv.co.uk07787 126336

@vwvemployment

COVID-19 Weekly Brief: Reopening Schools - Understanding Liabilities, Responsibilities, and Practicalities

Question Report

The responses to the questions posted following the webinar are a thought piece on the varying discursive points emanating from the webinar. It does not constitute legal advice and should not be relied upon in that capacity. LLG nor any other legal entity referenced in this document accept liability for reliance on the following content. Please exercise your own due diligence and seek specific independent legal advice where necessary.

Q1. Do you have a view if a teacher goes to school, after LA says it is OK, school have done its own risk assessments, but then suffers a personal injury by being exposed to Covid -19 who is potentially liable ? Governing Body, Head teacher, Local authority or all of the above.

A1. In terms of possible repercussions of 'reopening':

Liability for breaches of health and safety offences, whether that be criminal prosecutions or civil claims, generally sits with the employer. Therefore in order to answer this question it will first be necessary for schools to understand who is the employer of the teacher in question here.

School type Employer

Community schools

The local authority

Community special schools

Voluntary controlled schools

Maintained nursery schools

Pupil referral units

Foundation schools

The governing body Foundation special schools

Voluntary aided schools

Academies and free schools The Academy Trust

Some schools operate as part of a Public Private Partnership (PPP), Private Finance Initiative (PFI) or Non-Profit Distribution (NPD) arrangement. In these cases teachers, class room assistants and administrative staff might be employed by the local authority.

However some staff in ancillary services, for example catering or cleaning staff, may be employed by the organisation contracted to provide these ancillary services. See https://www.hse.gov.uk/services/education/faqs.htm#general

The Academy Trust/ Governing Body

The Governing Body or an Academy Trust (as distinct from the individuals) could be liable/ sued if a member of staff or a pupil contracted Covid-19 which was traced back to the school and or could face enforcement action by the Health and Safety Executive.

Where the Governing Body is the employer, they should refer to local authority’s education funding scheme to ensure that that they are clear which health and safety related functions are delegated to them which functions are carried out centrally by the local authority.

If a Governing Body or Academy Trust were to face such a claim, the claim would likely to be based on a failure to comply with the relevant health and safety legislation and/or a failure to take

reasonable care, and the school's risk assessments and adherence to the measures identified in that are likely to be key to defending any claim.

School's should check what insurance arrangements they have in place relating to the defence of criminal or regulatory proceedings and the defence of an employer's liability claims. ).

However, protection can only be obtained for the cost of civil damages and for the legal costs in defending proceedings, and not for criminal fines or penalties.

The Head Teacher

Whilst it is possible for enforcement action and/or a to be taken against an individual, such as a Headteacher, in practice claims against individuals are rare and are usually directed against the employer such as the Academy Trust or Governing Body.

Senior managers (as well as individual governors/ trustees),can be held criminally responsible for health and safety offences where the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of that individual.

We consider that the circumstances where this could be relevant in the case of a school reopening in a pandemic, would be exceptionally rare. It might be that insurance arrangements provide some cover for this. However, protection can only be obtained for the cost of civil damages and for the legal costs in defending proceedings, and not for criminal fines or penalties.

Headteachers, as governors, could also be liable on a civil basis, for breaches of duty. However, the law (and insurance) will generally protect governors who have acted honestly and reasonably and who have not benefited from their actions.

Local authorities

Where the local authority is the employer, such as in the case of community or voluntary controlled schools, then the local authority or one of its officers could be liable as employer or individual as set out above.

Where the local authority is the employer they should ensure the arrangements for managing risks in their schools are sensibly implemented. In practice this will usually require the local authority to set authority wide health and safety policies and procedures and such risks will normally be insured under the RPA.

Q2. Were you saying that school re-opening will need to be by way of a formal Exec decision (i.e. Local Authority Exec decision) in consultation with GB and HT? is this the case even for Academies?

A2. Ordinarily, a school reopening decision is delegated to the executive of the school, (typically the Head/CEO), as with any operational decision. However, responsibility for the decision remains with the governing body or trustee board. Given the importance of the matter at hand (and the strategic nature of the decision) and governing body's and trustees' duties, it is important that the governing body or the board and executive work together to ensure that there is proper oversight of this delegated power on reopening. Local authority advice is also central to these decisions; and especially so for schools where the local authority is the employer (community and voluntary controlled schools)'. The DfE guidance addresses the following statement to the governing body/ trustees:

"We would encourage you to continue to work with local authorities, who have a key role in resilience and emergency planning, as well as responsibility for the wellbeing of vulnerable children and school places. By working in partnership, taking practical steps, and supporting each other, we can steer a course through these challenging times."

Q4 Below considers this issue in further detail below.

Q3. Should a risk assessment include health and safety issues for a pupil returning to a home where a shielded person is living?

A3. We would advise that you gather this relevant information from parents prior to carrying out the risk assessment and that you factor the responses into your risk assessments if the family intend the child to return to school.

We have prepared some drafts correspondence to parents which we can share with you on request.

Q4. Where there is a scenario where LA wants to close school as too unsafe e.g. on health and safety grounds, what are LA options, presuming you've tried to negotiate with GB

A4. The conduct of a maintained school is down to the Governing Body, with powers delegated to the Head (see section 38 of the Schools Standards and Framework Act 1998). In relation to an Academy, these decisions vest with the Trust Board, again with delegated powers to the Head.

In deciding to close a school, Governing Bodies, Trust Boards and Heads will be required to follow guidance from the Local Authority, Public Health England when making their decisions to close or reopen a school. These decisions will be based on a rigorous risk assessment also. Quite recently, a Trust was referred to the Health & Safety Executive by the unions for taking a decision to reopen a school when others deemed that it was not safe to do so. Insurers should also be informed of decisions to reopen or close in advance of those decisions being taken.

Under section 29(5) of the Education Act 2002, LAs have powers to direct health and safety matters relating to school premises or school activities taking place elsewhere in the following types of school:

community schools voluntary controlled schools community special schools maintained nursery schools pupil referral units

Local authorities should only use these powers when a school’s health and safety arrangements are inadequate. See the DfE guidance Health and safety: responsibilities and duties for schools.

Therefore the LAs could look to exercise these powers in respect of the types of schools listed if they consider that a school's arrangements to protect against coronavirus are inadequate.

Alternatively, The Coronavirus Act at Schedule 16 sets out at section 1 (1) (a) the Secretary of State's powers to give a temporary closure direction to one or more named educational institutions (including maintained schools and most Academies). Before giving such a notice, the Secretary of State must have regard to any advice from the Chief Medical Officer or one of the Deputy Chief Medical Officers of the Department of Health and Social Care relating to the incidence or transmission of coronavirus, and must be satisfied that giving the direction is a necessary and proportionate action in response to the incidence or transmission of coronavirus.

The Secretary of State may—authorise a local authority to exercise any of the Secretary of State’s functions as set out above in relation to one or more of the following—

(i)a registered childcare provider in the local authority’s area;

(ii)a school in its area;

(iii)a 16 to 19 Academy, within the meaning of section 1B of the Academies Act 2010, in its

area; “school” has the same meaning as in the Education Act 1996 (see section 4 of that Act).

Based on the above legislative provisions, it seems that the LA could either use its powers under s29(5) of the Education Act 2002 and/or consult with the Secretary of State and/or the Education and Skills Funding Agency to seek to establish whether this decision will be exercised by the Secretary of State or devolved to the LA.

Q5. Is it a reasonable adjustment employer obligation to offer continuing home working for at high risk staff who can still work effectively from home e.g. admin support staff as contrasted with classroom staff?

A5. At the time of writing, the Government's advice still remains that if you can work from home that you should continue to do so. On this basis, for members of staff who are not required to be in school you should consider whether they remain at home. This is especially the case if the employee is considered clinically extremely vulnerable, clinically vulnerable or are disabled within the meaning of the Equality Act 2010 ("the Act") .

If the employee's health conditions mean that they fall within one of these categories it is likely that they will be disabled within the meaning of the Act and in accordance with the Act, an employer has an obligation to make reasonable adjustments in these circumstances. One of which would be to work from home.

Q6. Can a LA insist that a school closes / remains closed if it considers that the risk of Covid-19 is too high using s175 EA2002?

A6. Section 175 of the Education Act 2002 imposes a duty on local authorities to make arrangements for ensuring that their education functions are exercised with a view to safeguarding and promoting the welfare of children. In relation to the governing body of a maintained school, this section required the governing body to make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school.

The starting point for fulfilling these obligations will be a thorough risk assessment, based on all of the relevant advice that will be needed when considering re-opening a school (see also Q 1 above for the approach to the risk assessment).

Q7. Should Local Authorities, where they are the employer for a maintained school formally approve the risk assessment?

A7. This is difficult to answer because much will depend on what happens as a matter of custom and practice locally. There would be an expectation that where the LA is the employer, the School checks in regarding their plans to reopen. It would be difficult for them to approve risk assessments where they have no or little knowledge of the school itself. Our view is that this would be delegated to the school in the normal way.

Q8. What role do you think the Unions and joint staff consultative c'tee's and forums could or would play this area of both schools and staff?

A8. Where a union is recognised, we would advise that the unions are fully involved and engaged in the whole issue of the school reopening. They can assist and collaborate with you on all issues relevant to reopening.

Q9. Can you clarify distinction between operational decision maker and strategic decision maker as this was not clear to follow? A9. Please see the answer to question 2 above.

END