News

7

Jan

Section 44 clarification

 

We understand that the advice offered by National Education Union and UNISON that they believe schools were not safe and their members should not be returning to the workplace has now been withdrawn.

 

Information published by the DfE for schools with members of the National Education Union and Unison

 

This email is about recent advice to members from the National Education Union and UNISON about attendance of staff in schools and colleges because it may be impacting on your ability to provide on-site provision for vulnerable children and the children of critical workers. Their advice was issued before the Prime Minister’s announcement about the national lockdown on Monday evening. More communications about the operation of schools during that lockdown will be coming from the Department for Education shortly.

 

You will be aware that the National Education Union and UNISON had advised their members that they believe schools are not safe and their members should not be returning to the workplace. We understand that this advice has now been withdrawn. The Government did not agree with this advice because section 44 of the Employment Rights Act, on which they relied for this advice, is specific to each individual employee and cannot be applied in a blanket way to all school staff in the country.

 

As you know better than anyone, being at school is vital for children and young people’s education and for their wellbeing. Time spent out of education is detrimental for children and young people’s cognitive and academic development, particularly for disadvantaged children and young people. The Government has therefore made it a national priority that education and childcare settings operate as normally as possible during the coronavirus (COVID-19) outbreak.

 

The decision to limit on-site provision to vulnerable children and the children of critical workers, does not suggest that schools and colleges are no longer safe places. Instead, limiting attendance is about reducing the number of contacts that all of us have with people in other households. We have resisted limiting attendance at schools and colleges until now, but in the face of the rapidly rising numbers of cases across the country and intense pressure on the NHS, we now need to use every lever at our disposal to reduce contacts outside households wherever possible. In all cases, provision must continue to be made on-site for vulnerable children and the children of critical workers to safeguard their welfare and ensure essential services can continue to function.

 

The Royal College of Paediatrics and Child Health has in the last few days said: “Children’s wards are usually busy in winter. As of now we are not seeing significant pressure from COVID-19 in paediatrics across the UK. As cases in the community rise there will be a small increase in the number of children we see with COVID-19, but the overwhelming majority of children and young people have no symptoms or very mild illness only. The new variant appears to affect all ages and, as yet, we are not seeing any greater severity amongst children and young people.”

 

There is no evidence the new strain of the virus causes more serious illness in either children or adults and there continues to be strong evidence, to date, that children and younger people (those under 18 years old) are much less susceptible to severe clinical disease than older people. The Office for National Statistics (ONS) Coronavirus (COVID-19) Infection Survey data from 2 September to 16 October showed no evidence of difference in the rates of teachers/education workers testing positive for COVID-19 compared to key workers and other professions. Additionally, the Schools Infection Survey (covering 3 to 19 November) found the infection rate among teachers to be similar to that of the wider population.

 

The forthcoming guidance will remind you of employers’ health and safety obligations and will ask that you continue to operate the Public Health England (PHE)-endorsed ‘system of controls’ that have been in use throughout the coronavirus (COVID-19) pandemic. These measures create an inherently safer environment for children, young people and staff where the risk of transmission of infection is substantially reduced. The Department for Education (DfE) keeps these controls under review, working with PHE, based on the latest evidence. The way to control this virus is the same, whatever the variant.

 

We understand that your staff may have concerns about their safety when coming into school, and the appropriate process is for those members of staff to resolve these with you and your leadership team. You will of course be able to discuss and consult as appropriate with any trade union representatives, as well as seeking advice from your Regional Schools Commissioner’s office and local public health teams. If you are receiving letters from members of staff stating that they do not intend to attend the workplace as they do not consider it to be safe, you should engage with them, noting that the NEU and UNISON advice has been withdrawn and setting out, as we have above, the reasons that schools can and should be open. You will also want to consider their specific circumstances and concerns, to which you can then respond. If required, we recommend you seek your own legal advice.

 

We know this can be a difficult time to be running a school, and that the virus rates will be causing concern. We share your commitment to ensuring children get the best education, and that the process above will take into account all health and educational considerations in looking at this issue.

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