Article by Naomh Gibson
The role of a teacher is something which is often the subject of debate in education. Certainly, key policy developments in the past decade have seen the duties and responsibilities of teaching staff diversified and broadened.
For example, from 2015 onwards, some teachers have felt that the government’s Prevent strategy, which obliges teachers to refer to Police pupils they suspect of engaging in some sort of terrorist activity or radical behaviour, has turned them into “the secret service of the public sector” (Gary Kaye, NUT 2016 conference). Similarly, while the importance of safeguarding and the connected reported requirements are appreciated, recent developments appear to align teaching staff more closely with doctors and caring professionals rather than educators.
And now, in the midst of the COVID-19 pandemic, it looks as though the role is about to expand again: to sacrificial lamb. Recently, the Government has proposed an earliest possible date for re-opening of schools, 1 June 2020. The proposal is for a phased return, beyond the children of key workers and vulnerable children who are currently attending, to begin with Primary School pupils in Reception, Year 1 and Year 6.
Understandably, this announcement has caused something of a row between the Government, Academy chiefs, local councils, and teaching unions. On 8 May 2020, a joint statement was released by GMB, NAHT, NASUWT, NEU, UNISON and Unite calling the Government to “step back” from the 1 June date, and setting out principles and tests to be applied and met before schools could be safely re-opened (see full statement here).
As the row rages on and some schools begin re-opening, and it remains to be seen what measures the Government will adopt to ensure teaching staff are safe, many are asking the question: What if I don’t feel safe, can I refuse to teach or work in a school?
There is something a grey area created by the recent advice that anyone who cannot do their job effectively from home should go back to work. Your school might be satisfied with how remote teaching has functioned during the period of closure, and allow this to continue. However, if your school considers that remote teaching is not adequately addressing the school’s needs, they are entitled to ask you to return to work. You are not, however, forced to attend or to do all of your usual duties if you think there is a serious danger.
Section 44 of the Employment Rights Act 1996 allows employees to remove themselves from a dangerous workplace with no repercussions or recriminations (note, this will not apply to self-employed contractors like extra-curricular coaches or peripatetic staff). This will require you to have a reasonable belief of ‘serious or imminent danger’ which you could ‘not reasonably have been expected to avert’. With COVID-19 and its ubiquitous infection method, it is hard to imagine what a member of teaching staff could be expected to do to avert the danger – this is not, as a crude example, as simple as mopping up or avoiding a spill that someone might trip on.
Whether or not your school environment is dangerous depends on its particular circumstances, so be prepared to gather information to have that argument if needs be. For example, whether the dimensions of the classrooms or hallways are too small to allow for social distancing, or recording the amount of times during the day there was a breach of the 2 metre limit, or any near-misses. Maintaining social distancing is likely to be the single greatest risk to any re-opened school, especially those working with younger pupils or children with SEN/D, or any otherwise tactile pupil. Oddly enough, 2 of the identified classes for re-opening (Reception, Year 1) are the most likely to struggle with social distancing (see: children swapping lunches, sharing or fighting over toys and resources, hugging one another).
As an employee, you have a right to be made aware of the risks you face as part of your job, and how your employer is controlling them. This assessment of risks is (unsurprisingly) called a risk assessment and is part of the Management of Health and Safety at Work Regulations 1999 (often referred to as “the Management Regs”).
You have the right to ask your school when their last risk assessment was conducted, what the outcome was, and what new steps they have taken as a result – if they won’t tell you, they are breaking the law. Either your school is not giving you information required by Regulation 10 of the Management Regs, or they haven’t met their duties under Regulation 3 of the same.
Any BAME teaching staff may be especially concerned given the media coverage on the rate of COVID-19 infections and deaths within their community. If concerned, you should write to your employer and ask them to confirm that your BAME identity will be factored into the equality impact assessment of the staffing arrangements, as you are potentially more vulnerable to COVID-19 by merit of the same.
For those considering that a mask or gloves might be necessary for them, for example because you work with pupils requiring Team Teach etc. interventions which cannot be avoided, you do not have to purchase this yourself – your school should provide this under the Personal Protective Equipment at Work Regulations 1992.
If you have a recognised vulnerability, the Government advice for you remains to stay at home. As per the below list, you may be astonished as to which relatively common conditions (such as obesity, asthma, or pregnancy) categorises a person as vulnerable:
- Aged 70 or older (regardless of medical conditions)
- Under 70 with an underlying health condition such as those listed below
- Anyone instructed to get a flu jab as an adult each year on medical grounds
- Chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
- Chronic heart disease, such as heart failure
- Chronic kidney disease
- Chronic liver disease, such as hepatitis
- Chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy
- Problems with your spleen – e.g. sickle cell disease or if you have had your spleen removed
- A weakened immune system as the result of conditions such as HIV and Aids, or medicines such as steroid tablets or chemotherapy
- Being seriously overweight (a BMI of 40 or above)
- Those who are pregnant
If you are vulnerable for one or more of the above reasons but are still being forced to go in to school, you may be able to claim disability discrimination. To pre-empt any issues, it would be prudent to write to your school and remind them of your vulnerable status and ask them to confirm that they have factored into their planning that you will be unable to attend the premises.
If a member of your household is considered vulnerable, unfortunately it doesn’t look like this automatically exempts you from returning to school, but you should still raise this issue with your manager. You may be able to ask for this as unpaid leave to take care of the person as a dependent, assuming this is within your contract. If this is not an option, you should ask your school to enable you to work from home.
If you have raised your concerns but your school does not agree these are valid reasons and continue to insist that you attend the premises, refusing to do so might prompt them to take disciplinary action on the basis that you are breaching your employment contract.
How schools react to staff concerns (and resistance) will certainly depend on the feedback received from the schools which have re-opened, and whether or not the Government is willing to revise their strategy in light of developing data. If you feel your school is not taking your concerns seriously, you should seek the support of your union. If you are not already a member and have concerns about the cost of joining, some unions offer reduced or delayed joining and membership fees on request.
If you have any queries regarding this article, you can contact Naomh’s clerks on 0121 237 6035 or firstname.lastname@example.org. Naomh is a first six pupil accepting instructions from July 2020 onwards.