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Coronavirus: employment considerations for education institutions

Posted: 31/03/2020

Numerous measures have been put in place in recent days to seek to contain the virus and assist employers and employees during this unprecedented time. Some of these have particular implications for schools, colleges and universities.

“Stay at home” instructions

Remote working needs to be put in place wherever possible. As this is fast becoming the new norm, appropriate home working arrangements should be made as soon as possible and a flexible approach adopted for employees who need to juggle childcare and other family responsibilities with work. Risk assessments should be undertaken to check the suitability of the working environment and employers will need to consider whether any further special arrangements should be made for disabled employees, who may have special equipment (something as simple as an adapted keyboard) at work, but not at home.

Home working for extended periods is unusual in the education sector and employers will need to consider the wellbeing of their workforce and make creative use of available technology to ensure that employees are not isolated. Teaching staff will also need to be creative in delivering online or remote lessons, tutorials and other teaching Schools in particular will need to consider safeguarding issues where individual students are communicating with teaching staff.

If there is not enough work for employees to do, or it is difficult for work to be done effectively from home, employers may wish to take advantage of the Coronavirus Job Retention Scheme (“furlough leave”): see below.

Key workers

Schools need to make provision for educating the children of keyworkers, which includes some teachers. Keyworkers are entitled to continue accessing care for their children to enable them to carry on working. Employers need to be careful to ensure that the arrangements as to who is required to come into work are fair and clear and to be alert to the wellbeing of those members of staff, including any concerns they may have about their own attendance at the workplace and their children’s attendance at nursery or school, if eligible.

Employees who do not want to attend work but are not unwell and are not known to have underlying health conditions would be taking unauthorised absence. As such, they would not be entitled to pay and there could potentially be disciplinary consequences. However, employers should listen sensitively to the reasons for refusal to attend and try to be flexible.   In particular, if an employee raises concerns about health and safety, for example leaving or refusing to attend their workplace because they believe they are in serious and imminent danger which could not be avoided or taking appropriate steps to protect themselves or other people because they believe they are in serious and imminent danger, then the employee will have protection from dismissal under the Employment Rights Act.  The concerns raised by employees may also be relevant in determining who might be asked to take furlough leave.

Students in residence

If students remain in residence, staff will be required to attend the workplace both for safeguarding purposes and to provide essential services.

Carrying over holiday

New regulations have amended the Working Time Regulations allowing workers to carry over statutory annual leave entitlement into the next two leave years if they were unable to take it due to the coronavirus outbreak. The amendments will allow up to four weeks’ leave to be carried over.  Such carrying over of statutory annual leave must be done via written agreement between the worker and the employer and employers cannot refuse to permit the leave to be taken without good cause.

Furlough leave

Employers may decide to seek agreement to place some or all of their staff on furlough leave, under which the employer may receive a government grant of  80% of the worker’s pay, to a maximum of £2,500 a month (before deductions), plus employer’s NICs and mandatory pension contributions,  For more details, please see our note on furlough leave.

Furlough leave will be particularly relevant for staff whose jobs are not required at all for the moment - for example, catering and cleaning staff where canteens and offices are closed but can be applied to all employees provided they do not undertake any work for their employer and are not otherwise absent from the workplace. Furlough leave is also available to zero-hours workers

In conclusion

Furlough leave is just one of a number of measures which employers will need to consider in order to manage their workforce at this time. Others may include seeking agreement to short time working and pay, staggering annual leave (for non-teaching staff) to assist with workflow planning, and considering how to approach pay discussions.

Fee-paying establishments should also consider what provision they can make for next term if, as seems likely, the special measures put in place over the past days continue into the next term. In particular, they should be considering remote learning provision and how this may be staffed.

For more detail on the implications of Covid-19 on employers, our comprehensive Q&A guide outlining these and other important issues can be found here.

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Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP