COVID 19 FAQ’s 

West Midlands Regional Guidance

West Midlands Employers have created this FAQ to support Local Authorities, following the announcement of the school closure on Friday 20th March 2020. The FAQ’s have been updated on the 7th January following the announcement of a third national lockdown in England. We hope you find this information useful. We will keep this updated with any new questions. The advice has been interpreted from  Local Government Advice

When should an employee self-isolate?
Any person presenting with a high temperature (above 37.8) and/or a new persistent cough and/or a loss of, or change to taste/smell, should self-isolate for 7 days and should book a coronavirus test.

In addition, employees residing with any person showing symptoms should now isolate for 10 full days.

Travel between countries is severely restricted and on 19 March 2020 the Foreign Office advised against all but essential international travel. Any employee returning to the UK should now self-isolate for 10 days.

When will employees be eligible for a coronavirus vaccine?
The Government has published a priority list for distributing vaccination against coronavirus. Phase one of the programme will see the following groups vaccinated in priority order:

  1. residents in a care home for older adults and their carers
  2. all those 80 years of age and over and frontline health and social care workers
  3. all those 75 years of age and over
  4. all those 70 years of age and over and clinically extremely vulnerable individuals
  5. all those 65 years of age and over
  6. all individuals aged 16 years to 64 years with underlying health conditions which put them at higher risk of serious disease and mortality
  7. all those 60 years of age and over
  8. all those 55 years of age and over
  9. all those 50 years of age and over

There is currently no plan to extend priority to any other groups of key workers. Guidance answering many key questions on vaccination in relation to employment will be available shortly.

Will employees who self-isolate continue to receive normal pay?
Employees who are absent due to illness will obviously be subject to normal sick pay arrangements.

Under the Green Book – employees who are prevented from attending work due to contact with an infectious disease are entitled to be paid normally and the period of absence will not count against the sick pay entitlement. Should the employee be confirmed as having contracted Coronavirus they will transfer to sick pay at this point. Tests are available for anyone displaying symptoms.

The government announced that employees would receive sick pay from day one of absence due to Coronavirus infection. Any LAs who have moved away from Green Book sick pay arrangements and do not pay for the first 3 days absence will need to ensure that the first three days are at least covered by SSP.

What about teachers?
The Burgundy Book contains different terms to the Green Book and Section 4 paragraph 10 sets out some information re infectious diseases, specifically paragraph 10.3, when someone in the household is suffering from an infectious disease and the teacher is unable to attend work this should be counted as sick leave/pay, however, if it is due to an infectious disease being in the workplace then it should not be reckoned against sick leave entitlement but would be for SSP purposes.

There has been no national guidance issued in relation to the Burgundy Book terms. We will update you in relation to any further advice.

Will absence for Coronavirus count towards sickness triggers?
The NJC circular dated 6 March 2020 recommends that LAs consider discounting absence relating to coronavirus in terms of sickness triggers due to the unprecedented nature of the outbreak. This guidance remains current.

What is the position if employees are unable to attend work due to school closures?
If employees are unable to attend work due to enforced school closures LAs will need to apply their flexible working and special leave arrangements. Consideration should be given to extending flexible working arrangements for example by changing core hours and/or extending the working day. If it is possible for the employee to work from home this will not affect pay. Where it is not possible for an employee to work from home, special leave policies and time off for dependants entitlements will apply

Should we send staff who are unwell home?
As of 5 January 2021 a third national lockdown began and the government instruction is that everyone who can work from home, should work from home. However where employees do need to attend a place of work the NJC circular dated 6 March 2020 and advice given on 12 March relating to anyone displaying symptoms of a cough or fever should be followed. These employees should be sent home at the earliest opportunity and self-isolate for 7 days. The NJC circular states that consideration should be given in relation to at risk groups and extending flexible working arrangements as far as possible should be considered to both protect provision of services and to recognise the employer’s duty of care.

Who should attend work?
Similar to the first lockdown which commenced on 22 March 2020 the government has re-introduced stringent measures from 5 January 2021 instructing the whole country to stay indoors apart from a few specified reasons for leaving the home. These are:

  • shop for basic necessities, for you or a vulnerable person
  • go to work, or provide voluntary or charitable services, if you cannot reasonably do so from home
  • exercise with your household (or support bubble) or one other person, this should be limited to once per day, and you should not travel outside your local area.
  • meet your support bubble or childcare bubble where necessary, but only if you are legally permitted to form one
  • seek medical assistance or avoid injury, illness or risk of harm (including domestic abuse)
  • attend education or childcare – for those eligible

All local authority staff who can work from home should now be working from home. Each local authority will have identified who their key workers are and this should align with the government definition. Our regional guidance on key workers can be found here.

How do we provide evidence so our key workers can travel to work?
Employers can produce a letter confirming the job role the employee is required to carry out and that this is classified a key worker. As well as this documentation being provided to schools to demonstrate eligibility for a place in the emergency education provision, it may be useful to demonstrate a need to travel to and from work. It is possible that following implementation of the third lockdown on 5 January 2021 people may be challenged by the police with regards to their reason for being out of the home. The DHSC stated that there is currently no requirement for workers to be carrying official paperwork like other European countries however it may be something that is considered in future. The DHSC stated “If asked by police the purpose for their journey those working in e.g. the social care sector should simply state they are travelling to carry out work that cannot be done at home, and explain their key worker status. If employers feel that their staff would feel reassured by it, we suggest they provide a hard or electronic copy of a letter from their employer explaining their key worker status and why travel to a place of work is essential”.

Who is considered high risk?
In the government announcement on 16 March 2020 high risk groups are recommended to implement the measures and restrictions, these groups remain unchanged. To recognise the employer’s duty of care any employees falling into the high-risk categories below should adhere to the key new measures. Those previously identified as CEV have now been instructed to remain at home. These employees will receive a letter or text message informing them that should return to shielding.

High risk groups are defined as

  • pregnant women,
  • people over the age of 70
  • those with certain health conditions (other adults who would be offered a flu vaccine)

The instruction for high risk groups is:
They should remain in their home should not leave the house for any reason unless it is essential. They are permitted to work from home where they can.

Should we ask staff to wear face masks?
Face coverings are required to be worn in most indoor environments. Your covid-19 secure workplace risk assessments should identify where staff need to wear face coverings.

The advice Government advice on PPE remains that PPE is necessary for those in Health and social care roles where they are in contact with infected people, people suspected of being infected or those who are highly vulnerable. https://www.gov.uk/government/collections/coronavirus-covid-19-personal-protective-equipment-ppe

https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own

What precautionary measures should we ask staff to take in the workplace?
Where staff are unable to work from home and need to attend a place of work they should be reminded of the following advice:

  • Maintaining good hand and respiratory hygiene such as regular hand washing and using disposable tissues when coughing or sneezing.
  • Washing hands before eating, drinking, taking medication, applying make-up, inserting contact lenses etc.
  • Ensuring cuts and grazes are washed immediately with soap and running water and a dressing applied, and that other wounds are kept covered.
  • Disposing of tissues immediately into a bin.
  • Safe food practices
  • Avoiding close contact, when possible, with anyone showing symptoms of respiratory illness such as coughing and sneezing.

Staff who can work from home should be encouraged to ensure they have their laptops and other work equipment with them at all times to enable them to work from home should an unexpected need to stay at home arise.

Covid-19 secure workplace guidance should be followed at all times and risk assessments must by in place.

What if someone with Coronavirus has come into work?
If an ill employee is subsequently diagnosed with Coronavirus Public Health England (PHE) health protection team will get in contact with the employer to:

  • discuss the details of the case
  • identify employees and other people who have been in contact with the affected person
  • carry out a risk assessment
  • advise the employer on any actions or precautions to take

What should an employer accept as evidence of the need for an employee to self-isolate?
There are no official documents being issued so LAs are free to decide whether verbal notification is sufficient or whether they require an employee to produce any evidence. Where an employee has travelled abroad to a country of concern you could seek evidence of the dates and destination of the holiday. Employees could be asked to send a screen shot of the advice to self-isolate if they have used the NHS 111 on-line service or are using the Track and Trace App. You could email employees a short declaration form so the employee states the reason for the need to self-isolation (i.e. returning traveller, contact with known case).

Anyone displaying symptoms is requested to get tested and confirmation of the test appointment could also be used as evidence. Discretion will be needed in establishing the facts around the need to self-isolate but as with all sickness absence, any employee falsifying such claims could be subject to disciplinary action.

Should an employee come to work if their partner/someone in the household is self-isolating?
No. As per the guidance issued on 16 March 2020 anyone who lives with a person who is self-isolating due to symptoms should begin a period of self-isolation themselves for 10 days.

Can employees undertake other roles/work?
Please see guidance and redeployment FAQs by clicking here

What happens if employees (including key workers) are refusing to work?
In the current situation some staff are being asked to move away from their normal duties and into roles which are critical for the maintenance of essential services. Where possible staff will be asked to move to a role with similar duties or in a related area. This may not always be possible however, and LAs need to maintain flexibility and be responsive in these difficult times. A risk assessment should be undertaken to ensure the appropriate training and support is given, as well as any Personal Protective Equipment (PPE) and safe working practices needed whilst alternative work is carried out.

Employees should raise any particular concerns with their line manager in the first instance, who will consider individual circumstances on a case by case basis. The reason for the refusal must be identified and where the reason is considered legitimate redeployment may not go ahead. However employees cannot refuse a reasonable work instruction and disciplinary procedures may be appropriate. At this time the view is that asking all employees to support the emergency response is reasonable under the extraordinary circumstances and that as public sector employees we have a duty to deliver the government’s strategy in responding to the crisis. At present there is no recommendation that pay is automatically stopped for refusal to carry out alternative duties. Legal advice should be sought in any situation where this is being considered.

What is the current risk level in the UK?
As at 5 January 2021 the risk level in the UK was raised to the highest level – 5 where there is a risk of the NHS being overwhelmed.

In the case of sickness absence, self-isolation or any other situation where casual staff are unable to attend work do they need to be paid?
The key thing is to establish whether the individual is truly casual. This means that there is ‘no mutuality of obligation’ in that you are not obliged to offer work and the person is not obliged to take up the offer of work. Where this is genuinely the case and any work done by the individual is purely ad hoc then it may not be necessary to make payments. If, however, there is a pattern of work, even if it is a small number of hours, and the only reason they are not working is due to the Coronavirus, then they should still be paid, based on the average pay over the reference period. Some Local Authorities have moved “regular casuals” onto fixed term contracts to make their position clearer. The basic principle is that nobody should be worse but neither should any person be better off than if they had been available for work. If in doubt about whether to pay or not you should seek advice on a case by case basis.

Do we need to pay overtime?
Obviously where employees are working additional hours they need to be compensated financially with the appropriate overtime payments.

Where employees are working from home you need to establish what hours they are working and what hours you need them to be working. If this includes a requirement for overtime then all hours worked should be paid for in accordance with individual contracts of employment (e.g. overtime and enhancements may not be made above scp 28 where the salary can be set to include such additional work).

Where employees are self-isolating or unable to work from home because their role cannot be carried out at home and no alternative duties are available, basic contractual pay should be honoured but there is no obligation to pay overtime unless it is contractual (rarely seen in Local Government contracts). An argument could be made that where overtime has been regular this should be considered and individuals and unions may argue that this is “normal pay”. Currently the legal advice is that basic contractual pay should be honoured. If you think you have a case where overtime should be included please seek specific advice.

Does the Job Retention Scheme apply to Local Government workers?
The Government has announced that all employers, including local authorities, which, due to the effect of the virus, would need to make their employees redundant, can instead designate then as furloughed (subject to the terms of their contract or agreement with the employee). However, Government guidance on the scheme makes it clear that while the scheme is available to public sector employers, the Government does not expect the scheme to be used by many of them, as they will be continuing to provide essential public services. The guidance also states that where employers receive public funding for staff costs, and that funding is continuing, it expects employers to use that money to continue to pay staff in the usual fashion. Details of the scheme which has been extended until the end of April 2021 are available here

Has any guidance emerged on how to treat IR35?
The Government have not currently provided any advice on how to treat IR35 staff. The current view is that decisions about the status of any staff should be based on whether the Local Authority had budgeted for that work to take place and therefore the pay for the individual in line with the contract should be maintained.

The view on whether IR35 staff can be furloughed or not follows the same logic in that if those workers were budgeted for through central funds then there is financial provision to continue to pay these workers rather than to furlough them. Where furlough may be appropriate is when a role is financed through income generation. As IR35 workers are being paid from a budget, furlough does not apply. The advice is to treat IR35 workers as an employee and also recognise that the government are not expecting Local Authority’s to use furlough where finance for these posts are still available. We will keep you updated on further advice on this.

Agencies are requesting/demanding schools to furlough agency staff. What is the legal stance regarding this?
The crux of the matter is that in order for furlough to be applied, the employee needs to be on the organisations PAYE/payroll therefore it will be the agency’s decision and responsibility to furlough agency staff and not the schools. The LGA have provided guidance on agency worker pay where the school will continue to pay for agency workers if their support is required LGA Covid-19 Schools guidance:  Updated 7th April (from 3 April)

“Schools will continue to receive their budgets for the coming year as usual, regardless of any periods of partial or complete closure….We expect schools will draw first on their existing staff to maintain necessary provision, but schools may continue to need supply teachers and other temporary workers throughout this period. We encourage schools and employment businesses (agencies) to continue to liaise on any potential need to ensure workers are available where required.”

What should I do about an agency admin worker who started on 20 January to do an admin role. The assignment was until 1 May 2020. She was told to self-isolate for 12 weeks and whilst she has done some work from home; the majority of the work really needs to be done in the office as it involves printing off letters (this is a key worker support role work). Do I continue to pay her until 1 May 2020?
In advising you on an approach to manage this there are a number of considerations:

  • Can you redeploy her to another area where she can fulfil her full 37 hours so that she is being fully utilised?
    • Have you spoken to the agency about her contract to date and understood the agency as your suppliers position in line with Procurement Policy Note (PPN) 02/20

If your response to first point is that there is no available work to assign her to/ redeploy her to then you have a number of options:

  1. In line with the government guidance you could continue to pay the worker until 1st May in full as you would if someone were on a fixed term contract. Please note that this is guidance from the government and it not enforceable.
  2. You can provide the right notice in line with the contract and end the contract early. This is in line with employment law and you have the provision to do this in the terms of the agency agreement.
  3. You can use the guidance contingent workers by the cabinet office and pay the worker 80%/£2500 cap – you will need to discuss this approach with the agency in terms of taking this option and how to process the time sheets etc – the potential future risk is that this appears to be an unaligned to the equal treatment in relation to “basic working and employment conditions – Agency worker regulations 2010
  4. There is a strong sense to support the supply chain and this part of the flexible contingent labour market and this is the motivation for the government to recommend the options that I have highlighted in point 1 and 3 above.

Can employees refuse to undergo a coronavirus test?
Managers should first seek to establish the reason for refusal. Where the employee may have difficulty in attending a test centre alternatives should be explored and this may mean that testing of the individual is not possible. It may be critical to establish whether a key worker or someone they live with has the virus or not in terms of maintaining service provision. Local Government employees are subject to a provision in their terms and conditions which means that the employer has the right to request that they submit for reasonable medical examination, and therefore refusal without good reason could amount to a failure to follow reasonable instruction. However, careful consideration of the case should be made before taking any action and the provision obviously does not extend to members of the household who are not employees.

What happens if employees are refusing to work due to a lack of PPE resulting in a statutory function not being delivered?
The LGA have taken extensive legal advice on the matter which has been circulated to Councils. The first issue that arises is the question of whether the council can act to seek to make the employee carry out the work. That would normally take the form of disciplinary action and/or withdrawing pay.

The question of whether such action was legitimate would depend on whether the council’s requirement for the employee to carry out the work was within the terms of the employee’s contract, and the instruction was reasonable. Amongst other factors this would take into account the council’s duty to provide a statutory service, the steps it has taken to provide for the employee’s health and safety and the employee’s personal circumstances, for example, do they live with someone who is in a vulnerable group. In circumstances where the employee was not being provided with PPE in accordance with HSE and PHE guidelines, and the refusal to work was on account of that, then is very unlikely that any such disciplinary action or withdrawal of pay would be legitimate and it could lead to successful unlawful deductions from wages and/or unfair dismissal claims (including ones alleging whistleblowing and/or detrimental treatment/dismissal on health and safety grounds).

In any event, even if the employer’s action was legitimate, the employee could still refuse to work, and a council could not then seek a court order requiring the employee to carry out the work. This is because section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992 prohibits a court from taking such action.

If a council was failing to provide a statutory service, then the most common form of action it could face would be judicial review. The relevant legislation itself may also contain appeal/remedy provisions which could be enforced against the council through the courts.

In terms of judicial review, the following remedies are available for the court to grant to the claimant if their application for judicial review is successful:

  • Court orders
    • quashing orders (the original decision is nullified and remitted back to the decision maker for reconsideration who must reconsider the decision in light of the court’s findings)
    • mandatory orders
    • prohibiting orders
    • injunctions
    • declarations
    • damages.

It should be note however that judicial review is a discretionary remedy. Therefore, the court has considerable leeway when assessing whether relief should be given to the claimant. It is important to note though that because of section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992, a court could not make an order compelling an employee to carry out work to deliver the statutory service.

Can a furloughed employee take part in a disciplinary or grievance process?
Yes, following consideration of a number of factors. Employees have the right to raise a grievance during a period of furlough and it is possible to continue with a disciplinary case involving a furloughed employee. You will still need to apply your assessment of whether or not to pursue a case, including whether or not a fair process can be followed. WME have issued a framework of guiding principles to help with this. In addition ACAS have issued guidance regarding furloughed employees which states that during a period of furlough employees can take part in a disciplinary if it is on a voluntary basis and can be carried out in line with current public health guidance.

 

Keyworkers

We clearly have parents who are on the keyworker list, yet I really question that their roles are essential – they could work from home and look after their child. Is there anything that can be done about this?
The key worker list has been defined by Central Government and can be found here. WME have consulted with key regional stakeholders to interpret this list of key workers at a regional level. These roles have been identified as being key to maintaining the operation of critical  services. Even though some of these roles can work from home they may not be able to do that diligently if they were also having to look after their children.

Should the assumption be that children will not be offered a place if only one parent is a key worker unless there are clear reasons provided? If so, is the fact that the other parent says they need to go to work an acceptable reason? It flies in the face of other government advice.
Children with at least one parent or carer who is critical to the COVID-19 response can attend school if required. However, many families with a parent or carer working in critical sectors will be able to ensure their child is kept at home. Every child who can be safely cared for at home should be, to limit the chance of the virus spreading.

Please provide clear guidance about eligibility criteria for key workers where the second parent is not a key worker? Surely, the fact that a partner of a key worker is working is NOT a reason to offer a place – if that is the case that is completely contrary to the situation of parents who do not have a key worker in their family – they will have to take time off.
The eligibility criteria is as above. Even if one parent is a critical worker their child can attend school. However, the government are encouraging parents that where any child who can be safely cared for at home they should be, to limit the chance of the virus spreading.

One of the reasons why staff are being asked to take time off / annual leave, is to avoid an accumulation of leave which will disrupt business continuity once we are back to ‘business as usual’. The key here is to be flexible and creative around leave and how to support staff in the best way.

Does it have to be both parents that are key workers, or just one, as I am concerned, we could be used as childcare unnecessarily when children could be cared for at home.
It only requires one parent to be a Key worker for their child to be eligible for a school placement.

Is it justifiable if a parent states they would not expect their husband to care for children as he is required to be at work.
If the husband is working at home and the wife is a keyworker then her child is eligible to get a school placement whether the husband was working or not. However, if the husband is working from home then the government are encouraging any child who can be safely cared for at home to stay at home, to limit the chance of the virus spreading.

Does school staff as key workers include office staff?
School admin support have been identified as key workers by the West Midlands region as they play a fundamental role in for example: administering the school placements and ensuring that records are monitored and maintained and coordinating other administrative important activity.

Can Local Government employees get a coronavirus test?
Yes. From 24 April 2020 any local government employee, or a person who resides in their household, who is showing symptoms of coronavirus can request a test through a local testing centre. Currently testing is only possible for those people showing symptoms to establish if they currently have the virus. It is a non-invasive test which involves a swap taken from the back of the nose and throat. Employees may request the test themselves and should speak with their manager to establish local procedures. Managers may ask employees who report in with symptoms undergo a test. More information can be found at https://www.gov.uk/guidance/coronavirus-covid-19-getting-tested. There are currently no widespread antibody tests to establish whether someone has had the virus and recovered.

Can employees refuse to undergo a coronavirus test?
Managers should first seek to establish the reason for refusal. Where the employee may have difficulty in attending a test centre alternatives should be explored and this may mean that testing of the individual is not possible. It may be critical to establish whether a key worker or someone they live with has the virus or not in terms of maintaining service provision. Local Government employees are subject to a provision in their terms and conditions which means that the employer has the right to request that they submit for reasonable medical examination, and therefore refusal without good reason could amount to a failure to follow reasonable instruction. However, careful consideration of the case should be made before taking any action and the provision obviously does not extend to members of the household who are not employees.

Continuity to work

Are we supposed to contact all pupils who need a Free School Meal and does this include early years and ks1 children?
Yes. Headteachers can decide which of the available options will be best for families in their area. Schools can provide food on site, arrange deliveries or purchase a voucher to be given to the family. More information on support for pupils eligible for school meals is available.

The school can decide which option they are providing. We understand that some of these approaches may create extra costs for schools – we will provide further guidance shortly on how Central Government will compensate schools accordingly.

Are all Free School Meal children seen as vulnerable so should attend school?
No. Vulnerable children include those who have a social worker and those with education, health and care (EHC) plans. Children who have a social worker include children in need, children who have a child protection plan and those who are looked after by the local authority.  There may be some children not in these groups who still have free school meals for other reasons

Should it be a hot meal provided, or can we do packed lunches with shortage of caterers?
Headteachers can decide which of the available options will be best for families in their area.

What about Free School Meals for children who aren’t otherwise vulnerable; how do we provide lunch for them?
Headteachers can decide which of the available options will be best for families in their area and make the necessary arrangements.

 How will we get and then distribute meals and vouchers for free school meal children?
Advice on this process can be found here.

Schools will be able to provide meals or vouchers for supermarkets or local shops, which can be sent directly to families who are either self-isolating at home or whose schools are closed on government advice.

In terms of support staff on Term Time Only contracts having to potentially work in the Easter holidays – I assume this would be voluntary request and they should be paid for those additional weeks?
Schools are being asked to maintain the emergency provision over the Easter break but this is not a mandatory requirement. Schools are asked to strongly consider remaining open and should contact their Local Authority if this is not possible so that capacity assessment can by monitored. The provision should be staffed by a voluntary arrangement and Headteachers should consider a rota basis allowing staff a consecutive two week break where possible to ensure that additional hours are not being worked. In terms of support staff where they work additional hours they should be paid in accordance with the Green Book which includes enhancements for Bank Holiday working. At the time of writing no guidance has been issued in respect of teachers working over Easter or on Bank Holidays. Again a consecutive two week break should be given which ensures teachers are not working over their 1265 annualised hours. DfE guidance on this matter is expected.

What is the Trade Unions view about teachers working at Easter?
We will be working closely with the Trade Unions, if teachers are requested to work over Easter and will consider their views on this.

We are a special school. All our pupils have an EHCP. Do we have to maintain provision for all the pupils?
Residential special schools, boarding schools and special settings should continue to care for children wherever possible.

Is it mandatory for children on child protection plans to attend school?
If a child is on a child protection plan, they will be linked to a social worker which will mean that they fall under the Vulnerable Children’s category. However, it is not mandatory for the child to attend school if the parent or guardian wishes to keep them at home. We do recommend however that you record the decision as being that of the parent or guardian to decline a place

Can you please repeat the advice about school holidays, we were originally told that childcare had to be provided over the Easter holidays
Currently, Central Government are encouraging childcare providers, schools and colleges to continue to look after critical workers’ children and vulnerable children throughout the Easter holidays. There is no advice currently on whether schools will have to remain open over this period.

Is Easter mandatory?
School closure times form part of schoolteachers’ terms and conditions as well for those staff that work on a Term Time Only Contract. As mentioned above; we are in unprecedented times so decisions may be made in the future to change these conditions to support the decisions the Government takes.

Are staff in as per their normal working hours?
The school will be required to coordinate staff depending on the number of key worker’s children that are required to attend school. If they do not need all their staff to attend school, then they can create a rota system.

I have been told by someone that their child is eligible to go to school without an EHCP plan because they have 1:1 support. I don’t know whether this is school discretion or something that has been said by the government. I am unable to find clarification online.
Whether there is an official or unofficial plan in place for a child; if the school in conjunction with the parent feels that the child will be better off at school then this should be supported where it can be.

Contractual Issues

Should Exam invigilators already booked to do exams that have been cancelled be paid for the hours they had been booked for? The government advise is that any work that has been planned and budgeted for should be paid. Example: the employee has been “recruited” to carry out a piece of bespoke work in the summer term, e.g. an exam invigilator. This is a piece of work that the school has planned and budgeted for, and in the absence of the pandemic would be considered as business as usual and should therefore be paid. It is recommended that a policy is drawn up to ensure that a clear and consistent position is taken in these types of scenarios for casual staff.

Can we ask lunchtime supervisors to work half a day a week instead of coming in for an hour a day? It would be best to speak with staff and get their voluntary agreement on any changes you wish to make rather than enforce a new working pattern on staff.

Can Lunchtime staff can come in to help with childcare? It is reasonable to ask Lunchtime staff to supervise the children while they have their lunch so that teaching staff can have a break. Through mutual agreement lunchtime staff can provide additional support however they should not be asked to carry out duties that are outside of their role as a lunchtime supervisor, and any work which is different should be appropriately risk assessed.

Can we pool school staff hours so we can provide training sessions? The school can use their discretion on how to coordinate the running of the school and any changes should be fully discussed with staff so that there is an agreement on the changes that are being put in place.

What happens with regards to pay when schools are forced to shut? Both teachers and non-teachers will be paid on full pay, not counting as sick pay, during periods of school closure unless the employee is considered unfit and would not be able to attend work if the school was open. However, there are some differences between Green Book and Burgundy Book Terms and conditions (please see below.

Under what circumstances would sick pay commence?

Non-teaching staff
Should the employee contract coronavirus the period that they unwell wold be counted as sick pay and appropriate reporting procedures should be established immediately in order that this can be recorded. The NJC Circular of 6 March confirms this (extract below). “With regard to our previous circular that cited Part 2 Para 10.9 of the ‘Green Book’, if an employee is fit for work but decides, or is instructed, to self-isolate, their absence should not be recorded as sickness absence. We would expect all options for home or remote working to be explored with the employee. As they are ‘well’ at this stage they should stay on normal full pay for the duration of the self-isolation period until such time as they are confirmed to have contracted the virus, at which point they transfer to sickness absence leave and the usual provisions of the sickness scheme will apply.”

Teaching staff
Under the Burgundy Book diagnosis with an infectious disease at work, or where they are required to stay away from work because of an infectious disease in the workplace this does not count against sick pay entitlement. Neither of these provisions cover the situation we now find ourselves in when schools are closed however section 7 does talk about sick pay during school closure periods. This is an unprecedented situation, so the advice currently is to advise in line with this specific illness. According to medical guidance the incubation period for contracting Covid-19 is 14 days. Therefore, a teacher falling ill in 14 days or less following the school closure period, could have contracted the illness in the workplace and therefore the pay should not be counted as sick pay. A teacher contracting the illness 15 days or more following a school closure period should be treated as not contracting the illness in the workplace and therefore the absence will be counted towards their sick pay entitlement. Should any national guidance on this provide for different provisions we will update you. If you have any special arrangements where a teacher is still having contact through work for any reason and contracts covid-19 please contact us for advice.

How do I know whether to apply sick pay to an absent employee?
The question above confirms when sick pay should apply. In order to be able to administrate this is it is imperative that schools maintain a reporting procedure and can still record employees who are self-isolating because someone in the household where they reside has symptoms, and those who are sick. Prior to or as soon as possible after closure reporting procedures should be communicated to all staff.

Should I ask employees to work from home?
Wherever possible employees who are unable to attend work should be asked to undertake duties at home. Schools will have some provision for supporting learning during this closure period and teachers and support staff can and should be asked to contribute to this in accordance with their contracted hours as far as possible. It should be possible for most teachers to carry out at least part of their duties under directed time, albeit done in a different way, at home.

Can I make contact with employees who are at home during school closure periods?
Yes. Employees are still being paid and where possible should be working from home, undertaking duties commensurate with their roles. Regular communication should be maintained through normal line management arrangements and this may well involve new methods not needed before, for example individual or group video calls as well as phone calls. Employees should be regularly reminded of the reporting procedures for sickness absence and regular contact will help reinforce this and identify periods of sickness.

What about site staff?
As long as a member of the site team is well normal duties undertaken during school closure periods can continue. Sickness absence reporting procedures must be communicated so that you can identify when a member of the site team is unable to work. Anyone showing symptoms should not enter the premises. It is likely that lettings arrangements will discontinue during school closures attributed to the Coronavirus outbreak however you should ensure that your lone working policies and risk assessments are fully up to date.

What about roles which cannot be undertaken at home e.g. lunchtime supervision?
NJC guidance sets out considerations for employees who are otherwise well but cannot attend their normal place of work due to the Government’s instruction for people to work at home and avoid all non-essential travel. As previously advised, all options for using annual leave, special leave etc should be explored but given the length of time that this national emergency is set to last it is not reasonable, for example, to expect employees to use their entire annual leave entitlement to cover all or part of the lockdown period as consideration should be given to planned booked holidays later in the year, along with employees who may require leave throughout the year to support dependents. The position relating to all support staff in schools presents particular challenges. Ultimately, in many cases employers will have no option other than to accept that some employees can neither work at home nor be redeployed / seconded etc and will therefore be staying at home on full pay for the duration of this emergency.

We are furloughing wrap around workers/employees and have explored redeployment without any success. There are a number of employees in this group who hold multiple posts not only in the same school but in other schools or in the same local authority. If they are furloughed from one post that is parent funded do they continue to get paid from the other post? Furloughed employee cannot do any work for the employer which furloughed them. So that means you cannot furlough someone from one job, while they continue in their other and therefore cannot be paid for the other job. Both jobs will need to be furloughed as a consequence. The LGA are still waiting for a response from MHCLG/HMT/DfE on this type of query regarding dual employments with the same employer. WME will keep you updated with any changes to this position.  

What happens if employees are refusing to work due to a lack of PPE resulting in a statutory function not being delivered?
The LGA have taken extensive legal advice on the matter which has been circulated to Councils. The first issue that arises is the question of whether the council can act to seek to make the employee carry out the work. That would normally take the form of disciplinary action and/or withdrawing pay.

The question of whether such action was legitimate would depend on whether the council’s requirement for the employee to carry out the work was within the terms of the employee’s contract, and the instruction was reasonable. Amongst other factors this would take into account the council’s duty to provide a statutory service, the steps it has taken to provide for the employee’s health and safety and the employee’s personal circumstances, for example, do they live with someone who is in a vulnerable group. In circumstances where the employee was not being provided with PPE in accordance with HSE and PHE guidelines, and the refusal to work was on account of that, then is very unlikely that any such disciplinary action or withdrawal of pay would be legitimate and it could lead to successful unlawful deductions from wages and/or unfair dismissal claims (including ones alleging whistleblowing and/or detrimental treatment/dismissal on health and safety grounds). In any event, even if the employer’s action was legitimate, the employee could still refuse to work, and a council could not then seek a court order requiring the employee to carry out the work. This is because section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992 prohibits a court from taking such action.

If a council was failing to provide a statutory service, then the most common form of action it could face would be judicial review. The relevant legislation itself may also contain appeal/remedy provisions which could be enforced against the council through the courts.

In terms of judicial review, the following remedies are available for the court to grant to the claimant if their application for judicial review is successful:

  • Court orders
    • quashing orders (the original decision is nullified and remitted back to the decision maker for reconsideration who must reconsider the decision in light of the court’s findings)
    • mandatory orders
    • prohibiting orders
    • injunctions
    • declarations
    • damages

It should be note however that judicial review is a discretionary remedy. Therefore, the court has considerable leeway when assessing whether relief should be given to the claimant. It is important to note though that because of section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992, a court could not make an order compelling an employee to carry out work to deliver the statutory service.

Can a furloughed employee take part in a disciplinary or grievance process?
Yes, following consideration of a number of factors. Employees have the right to raise a grievance during a period of furlough and it is possible to continue with a disciplinary case involving a furloughed employee. You will still need to apply your assessment of whether or not to pursue a case, including whether or not a fair process can be followed. WME have issued a framework of guiding principles to help with this. In addition ACAS have issued guidance regarding furloughed employees which states that during a period of furlough employees can take part in a disciplinary if it is on a voluntary basis and can be carried out in line with current public health guidance.

Working over Easter – update

Is it mandatory for schools to open over Easter?
No. The government are only requesting schools maintain the provision so that key workers can continue to work. Local Authorities are responsible for monitoring demand and capacity. You can continue to pool provision within a MAT or local cluster of schools and should speak with your Local Authority if you have an open provision that cannot open on any days.

How far can I instruct staff to work over Easter?
You should seek volunteers to staff the provision over Easter from both support and teaching staff. Under the STPCD teachers cannot be required to work on a Bank Holiday. Equally support staff will not have provisions within their contracts to work on Bank Holidays although Green Book does allow for this. staffing levels to maintain safe provision using a rota system is the most reasonable way of achieving this.

What should I pay staff who work over Easter, including Bank Holiday working?
In terms of support staff, where they work additional hours they should be paid in accordance with the Green Book which includes enhancements for Bank Holiday working.

In terms of teaching staff, the DfE has not issued any guidance on this matter to date and WME therefore recommend at this stage that any payments or enhancements should be locally determined. There are a number of options available for teaching staff:

  • A fixed payment – similar to an honorarium for anyone working over Easter. You could either set a daily or weekly rate depending on how your provision is staffed.
  • Calculation of a normal daily rate based on the teacher’s individual salary.
  • A separate contract with a rate based on a role profile (this does not necessarily need to be on Burgundy Book T&Cs but all implications including pension need to be considered)

All options could include an additional enhancement for working on the Bank Holidays.
Should the DfE decide to issue guidance recommending or providing for a more favourable method of payment than those locally decided, this will be applied retrospectively.

Should staff still have time off if they are being paid for additional hours?
Yes. In terms of support staff, their annual leave entitlement is incorporated into their pay and there are more school holiday weeks than their leave entitlement, however at present we do not know how long the emergency measures will be in place. It is recommended that all support and teaching staff take a consecutive two week break to ensure that they are adequately rested and that Working Time Regulations are not inadvertently breached.

What should I pay staff who work over Easter, including Bank Holiday working?
In terms of support staff, where they work additional hours they should be paid in accordance with the Green Book which includes enhancements for Bank Holiday working.

In terms of teaching staff, the DfE has not issued any guidance on this matter to date and WME therefore recommend at this stage that any payments or enhancements should be locally determined. There are a number of options available for teaching staff:

  • A fixed payment – similar to an honorarium for anyone working over Easter. You could either set a daily or weekly rate depending on how your provision is staffed.
  • Calculation of a normal daily rate based on the teacher’s individual salary.
  • A separate contract with a rate based on a role profile (this does not necessarily need to be on Burgundy Book T&Cs but all implications including pension need to be considered)

All options could include an additional enhancement for working on the Bank Holidays.
Should the DfE decide to issue guidance recommending or providing for a more favourable method of payment than those locally decided, this will be applied retrospectively.

Should staff still have time off if they are being paid for additional hours?
Yes. In terms of support staff, their annual leave entitlement is incorporated into their pay and there are more school holiday weeks than their leave entitlement, however at present we do not know how long the emergency measures will be in place. It is recommended that all support and teaching staff take a consecutive two week break to ensure that they are adequately rested and that Working Time Regulations are not inadvertently breached.

In terms of support staff on Term Time Only contracts having to potentially work in the Easter holidays – I assume this would be voluntary request and they should be paid for those additional weeks?
Schools are being asked to maintain the emergency provision over the Easter break but this is not a mandatory requirement. Schools are asked to strongly consider remaining open and should contact their Local Authority if this is not possible so that capacity assessment can by monitored. The provision should be staffed by a voluntary arrangement and Headteachers should consider a rota basis allowing staff a consecutive two week break where possible to ensure that additional hours are not being worked. In terms of support staff where they work additional hours they should be paid in accordance with the Green Book which includes enhancements for Bank Holiday working. At the time of writing no guidance has been issued in respect of teachers working over Easter or on Bank Holidays. Again a consecutive two week break should be given which ensures teachers are not working over their 1265 annualised hours. DfE guidance on this matter is expected.