Who needs to attend work during a national lockdown / tier restriction?

Any employee may be required to work in accordance with their contract of employment. The closure of the school to some pupils does not release employees from their contractual obligations to attend work as required.

You may require some, but not all, employees to attend work. There is no official guidance on how such selections should be made although a reasonable and objective approach should be adopted.

Employees may be required to attend on a full or part-time basis, up to their normal hours, as meets the school's requirements.

Factors which we consider may be relevant when reviewing staffing include (but not exhaustive):

• the role held by the employee, including the needs of the pupils who will be attending
• whether the employee is required to self-isolate per government guidance
• whether the employee is within a clinically extremely vulnerable category and is at enhanced risk by working

What happens if an employee objects to working?

If an employee is worried about attending work, it is vital to listen to any concerns they may have in relation to exposure to Coronavirus. Where there are genuine concerns, an employer must try to resolve these issues to protect the health and safety of their employees. If an employee still refuses to attend work, they may be able to arrange time off as holiday or unpaid leave, but the employer doesn’t have to agree to this.

However, an employee who objects to attending work, whilst contractually required to do so, will be in breach of contract. Unless there is a good reason to do so, they would potentially be subject to disciplinary procedures and would not be entitled to pay for the period they refuse to work. During these unusual circumstances, we advise that disciplinary action should be a last resort and, instead, a discussion should be held to understand the employee’s position and alleviate any concerns they may have, if possible. Each case would need to be considered on its merits based on government advice available at the time. The school will have undertaken and will regularly review COVID-19 risk assessments for pupils and staff.

Can I require employees to undertake duties in relation to non-attending pupils?

For many schools, there will be a focus on how to support pupils in learning remotely, and this will require teaching and other employees to work differently to ensure that there is a reduced impact upon pupils' learning. You may require employees to provide online learning, assessments and pupil support during a period when school premises are partially closed. It would then be a matter of agreement as to where such work was undertaken, including the employee’s home environment subject to any safeguarding or data protection issues that may arise.

It is reasonable to ask employees to carry out any necessary work, even if this is different to normal, to meet the demands of the school, whilst considering whether their skills and experience would enable them to carry out such tasks.

If we need to close the school or a member of staff is required to self-isolate or go into quarantine, is it reasonable to ask them to work remotely from home, where resources and access allow?

Yes, it would be reasonable to ask staff to work remotely during this time, providing they themselves are not unwell. In the event that homeworking is agreed, the employee should continue to receive their normal contractual pay for this period.

What action should I take if an employee fails to attend work and does not notify me of their absence?

If the employee fails to notify you of their absence and fails to respond to contact, normally they will be considered absent without leave (AWOL). However, in these unusual circumstances, we advise you contact your HR Adviser for guidance on what steps should be taken, rather than instigating disciplinary action, which would normally apply.

Should we expect employees to provide a fit note if they are self-isolating for over 7 days?

Employees are now able to obtain “isolation notes” via the NHS 111 service by completing an online form. These cover cases where the employee is experiencing symptoms or needs to self-isolate due to symptoms experienced by another person. 

What to do if a staff member displays symptoms?

Please refer to the latest flowchart sent to schools from Director of Children’s Services dated 15 September 2020.  Guidance is correct at this time but may be subject to change following DfE or PHE guidance.

A number of my employees are agreeing to undertake a different role and/or working pattern. How should I pay them?

Employees should receive their normal rate of pay for whatever work they are asked to undertake. However, if the work is of a higher level than normal, they should be paid the appropriate job rate for such duties.

What pay are employees entitled to if the School is partially closed?

Employees not required to attend work are entitled to be paid in accordance with their normal contractual earnings.

How should the absence as a result of Coronavirus be recorded for payroll purposes through Sims?

Refer to the ITSS information previously sent and all other sickness absence should be recorded in the usual way.

What are the pay implications if an employee is off sick with Coronavirus? 

For schools and Multi-Academy Trusts following the ‘Burgundy Book’ for teaching staff and the ‘Green Book’ for non-teaching staff, the relevant sick pay provisions should be followed. If you don’t follow these regulations, then the entitlement to paid leave will be in accordance with your leave of absence and sickness policies.

Where an employee is required to self-isolate displaying no symptoms and in line with Public Health England guidelines, and due to the nature of their job are unable to work from home, should they still be paid?

Support staff

If an employee is required to self-isolate the National Joint Council for local government services has confirmed that the provisions above should apply, i.e.

If they are not able to work from home, the guidance issued at the very start of the pandemic still remains, if they are not symptomatic but have been advised to self-isolate due to potential contact with the infectious disease, then they should be paid their normal pay for the self-isolation period. The period of absence on this account shall not be reckoned against the employee’s entitlements under this scheme. If the employee becomes symptomatic and too sick to work, then they should be moved to sick pay.

Teachers

In schools/Trusts which follow the ‘Burgundy Book’ for teaching staff, the Local Government Association recommend that the provision set out in the ‘Burgundy Book’, Section 4 Sick Pay Scheme, paragraph 10.3, should apply:

10.3 'A teacher residing in a house in which some other person is suffering from an infectious disease shall at once notify the employer and the teacher shall, if required, take such precautions as may be prescribed, provided that if in the opinion of the approved medical practitioner it is considered inadvisable, notwithstanding such precautions, for such teacher to attend duty, full pay shall be allowed during any enforced absence from duty, such pay being sick pay for the purpose of paragraphs 3 to 7.5 above. This provision will also apply where, in the opinion of an approved medical practitioner, it is inadvisable for a teacher to attend duty for precautionary reasons due to infectious disease in the workplace. The period of the absence under this paragraph shall not be reckoned against the teacher’s entitlement to sick leave, though such absences are reckonable for entitlements to Statutory Sick Pay.'

Absence for support staff and teachers due to Coronavirus doesn’t count against contractual sick pay entitlement or triggers.

In addition to the guidance above, any capability dismissal which included absences where the employee concerned was self-isolating would risk being held unfair by an Employment Tribunal (assuming the employee had enough continuity of service to present a claim).

If our school closes, what is the process for paying new starters?

Despite an employee possibly not being able to officially start in the school, you have a contractual obligation to pay them. This means that they would be entitled to receive pay in line with their contract of employment, regardless of their service. It is appreciated that home working will be difficult for new starters but consider if elements of their induction can be undertaken remotely.

What are the pay implications for casual workers if they are required to self-isolate or the school is closed?

A true casual worker, who does not work a regular, ongoing working pattern, would not qualify for contractual sick pay. If the individual has regular working hours (and is therefore, not truly a casual worker), their ongoing pay should be based as if they are an employee (covered above).

What are the pay implications for contractors if they are required to self-isolate or the school is closed?

Contractors who are not employed or paid by the school, are not entitled to contractual sick pay. For guidance on this matter, please refer to the government's guidance.

What are the pay implications for an employee who takes annual leave is then advised by PHE to quarantine for 14 days upon return (outside of National Lockdown or Tier restrictions)?

Any holiday booked after 8 June when the airbridges came into effect should be treated as being booked in the full knowledge that quarantine periods may apply. Therefore, an employee who has to quarantine should be supported to work from home wherever possible. But if this is not possible, they should take it as annual leave or unpaid leave.

Where the quarantine rules change while an employee is abroad, employers could exercise discretion and agree special paid leave because the rules changed but the NJC guidance indicates that all overseas holidays booked after the airbridges were brought in has been booked in the full knowledge that the situation is fluid and things might change.

Any holidays booked prior to the airbridges coming in, is treated in the same way as when the pandemic first hit. If the employee is unable to work from home the employee will be put on special paid leave and paid full pay. You can request proof of when the holiday was booked.

Can I require employees to work during normal school closure period if required?

We would advise, wherever possible, to seek volunteers to work in the normal holiday periods. If absolutely necessary, you may compel certain employees to undertake work in this period, including the following:

• support staff with a 52 week contract
• support staff with a term-time plus contract with the ability to direct the additional agreed days under their contract
• teaching staff provided that this is within the 1265 hours of “directed time” provisions, particularly as there will be reduced working time in the summer term. Be mindful of the 195 working days being stipulated in the School Teachers Pay and Conditions Document, and that you have likely consulted on the school calendar at the start of the academic year. It is possible to consult on changes to the calendar and in reality, the 195 days is unlikely to be exceeded due to extended school closure periods and/or employees working on a rota basis.
• leadership staff may also be expected to undertake reasonable work in this period, including attendance on site

If an employee has booked annual leave (staff on 52 week contracts), but your school is forced to close, are they able to claim this back?

If the employee doesn’t go on holiday or doesn’t want to use their annual leave at this point, they are able to request it is cancelled. Nevertheless, an employer does not have to agree to the request. Given that annual leave will still need to used at some point we are encouraging employees to take their annual leave during this time if possible. It would be reasonable to use 7 days.