On 11 May 2020, the Department for Education (DfE) published guidance on the opening of schools and childcare settings to more pupils from 1 June 2020. The DfE guidance states that, if five key tests are satisfied at that time, the government will, from the week commencing 1 June 2020 at the earliest, be asking (i) primary schools to welcome back children in nursery, reception, year one and year six, alongside priority groups; and (ii) secondary schools, sixth form and further education colleges to offer some face-to-face support to supplement the remote education of year 10 and year 12 students who are due to take key exams next year, alongside the full-time provision being offered to priority groups.
On 14 May 2020, NAHT issued advice for school leaders on phased returns. The advice explained NAHT’s very significant concerns about the government’s proposals but suggested that it would be sensible for members to work through plans and considerations for a phased return to work, not least since there is a difference between planning for a return and implementing a return. We emphasised that any phased return has to be managed with extreme caution and care, so that all necessary protective measures can be put in place, and pointed out that this could require a more gradual approach than the government has proposed.
- Summarises the duties that the law imposes on schools to take reasonable steps to protect the health and safety of their staff, pupils and visitors to the school
- Considers the protection afforded by the law to an employee who leaves the workplace and/or refuses to return to work because of concerns about their health and safety.
Health and safety: legal duties
A school’s responsibilities in relation to health and safety derive from the criminal and the civil law. In addition, the legislation which governs schools imposes some specific obligations in relation to the welfare, health and safety of pupils and the standards which must be met by school premises.
The Health and Safety at Work etc Act 1974 (HASAW) sets out the general health and safety duties of a school towards its employees, pupils, contractors, visitors and any other persons who may be affected by the school’s activities. There are three general duties:
- By s. 2, an employer  has a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of work of all its employees and to put in place a written health and safety policy
- By s. 3, an employer must conduct its undertaking in such a way as to ensure, so far as is reasonably practicable, that persons other than its employees are not exposed to risks to their health and safety
- By s. 4, an employer has a duty, so far is reasonably practicable, to manage the health and safety risks arising at premises which it controls, including the means of access and any plant in the premises.
HASAW also imposes general duties in relation to health and safety on employees. By s. 7 of the Act, every employee has a duty while at work (i) to take reasonable care for their own health and safety and that of other persons who may be affected by their acts or omissions at work; and (ii) to cooperate with their employer to enable the employer’s health and safety duties to be performed.
The provisions of HASAW are supplemented by various regulations which spell out in more detail the steps an employer should take to comply with its general duties under the Act. Regulations which may be directly relevant to any phased return of pupils include the following:
The Management of Health and Safety at Work Regulations
The Management of Health and Safety at Work Regulations 1999 (MHSWR) set out specific steps that every employer is required to take to comply with its general duties under HASAW.
Perhaps the most important duty imposed by MHSWR is the obligation to carry out a risk assessment. Reg. 3 provides that every employer shall make a “suitable and sufficient” assessment of the risks to health and safety to which its employees and other persons affected by its activities are exposed. The stated purpose of the assessment is to identify the measures the employer needs to take to comply with the requirements of the health and safety legislation. Any employer with five or more employees is required to record (i) the significant findings of the risk assessment and (ii) any group of its employees identified as being especially at risk.
The employer’s risk assessment must be kept under review and re-assessed if there is any reason to suspect that it is no longer valid or there has been a significant change in the matters to which it relates.
Case law concerning the obligation to carry out a risk assessment holds that:
- the risks to be assessed are not limited to those specifically arising from the particular work activity but include risks arising from the natural environment to which the worker is exposed while at work (Kennedy v Cordia (Services) LLP  ICR 325 SC);
- there is no universal duty to appoint an external expert to assist with a risk assessment but, if lack of expertise prevents an employer’s risk assessment from being suitable and sufficient, the employer must seek the necessary expert advice (Scott v AIB Group (UK) plc  NICA 3);
- anyone charged by an employer with carrying out a risk assessment will need to have the necessary expertise and experience to ensure that the assessment is “suitable and sufficient” (Proctor v City Facilities Management  NIQB 99).
In addition to imposing the duty to carry out a risk assessment, the MHSWR also require an employer to:
Workplace (Health, Safety and Welfare) Regulations
- implement preventive and protective measures on the basis of certain fundamental health and safety principles which are set out in a schedule to the regulations (reg. 4 and schedule 1);
- make arrangements for the effective planning, organisation, control, monitoring and review of the preventive and protective measures (reg. 5);
- ensure employees are provided with appropriate health surveillance, having regard to the risks to their health and safety identified by the risk assessment (reg. 6);
- appoint one or more competent persons to assist the employer in carrying out the necessary health and safety measures (reg. 7). Regulation 7(5) provides that a person will be regarded as “competent” if they have “sufficient training and experience or knowledge and other qualities” to enable them properly to assist the employer;
- establish appropriate procedures to be followed in the event of “serious and imminent danger” to persons at work in its undertaking, including procedures for evacuating the premises and restricting access to parts of the premises on the grounds of health and safety (reg. 8);
- ensure that any necessary contacts with external services are arranged (reg. 9);
- provide the employer’s employees with clear information on various health and safety matters, including (i) the risks to their health and safety identified by the risk assessment; (ii) the preventive and protective measures; and (iii) the emergency procedures for responding to serious and imminent danger (reg. 10);
- cooperate and coordinate with any other employer sharing the same workplace, eg a contractor providing cleaning or catering services (reg. 11);
- provide its employees with adequate health and safety training, in particular where they are exposed to new or increased risks (reg. 13)
- make an assessment of risks to new and expectant mothers (reg. 16).
The Workplace (Health, Safety and Welfare) Regulations 1992 (WHSW) cover a wide range of basic health, safety and welfare issues. Requirements which may be of particular relevance in guarding against the risk of covid-19 include duties to ensure:
- every enclosed workplace is ventilated by a sufficient quantity of fresh or purified air (reg. 6);
- every workplace, including the furniture, furnishings and fittings, and the floors, walls and ceilings are kept sufficiently clean and that, so far as reasonably practicable, waste materials are not allowed to accumulate in a workplace except in suitable receptacles (reg. 9);
- suitable and sufficient washing facilities are provided (reg. 21).
Personal Protective Equipment Regulations
The Personal Protective Equipment at Work Regulations 1992 (PPER) require an employer to provide appropriate personal protective equipment (PPE) for its employees where a risk to their health and safety cannot be controlled by any other means.
Reg. 4 of the PPER provides that every employer shall ensure that suitable PPE is provided to its employees who may be exposed to a risk to their health or safety while at work except where, and to the extent that, such risk has been adequately controlled by other means which are equally or more effective. To be “suitable”, PPE must be (i) appropriate for the risks involved; (ii) take account of ergonomic requirements, the state of health of the person who may wear it and the characteristics of their work station; (iii) be capable of fitting the wearer correctly; and (iii) so far as is practicable, effective to prevent or adequately control the risks in question without increasing overall risk.
Reg. 6 of the PPER provides that, before choosing any PPE, the employer must carry out an assessment to determine whether the PPE it intends to provide is suitable. As part of that assessment, the employer must (i) assess any risks to health and safety which have not been avoided by other means; (ii) define the characteristics which PPE must have in order to be effective against the relevant risks, taking into account any risks which the equipment itself may create; and (iii) decide whether the PPE which is available possesses the necessary characteristics.
Consultation with employee representatives
Section 2(6) of HASAW requires the employer to consult safety representatives appointed by recognised trade unions in “promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures”. Regulation 4A of the Safety Representatives and Safety Committees Regulations 1977 requires the employer to consult safety representatives in good time with regard, inter alia, to (i) the introduction of any measure at the workplace which may substantially affect the health and safety of the employees the safety representatives concerned represent; (ii) the employer’s arrangements for appointing competent persons to assist it in the implementation of measures; (iii) any health and safety information the employer is required to provide to the relevant employees; (iv) the planning and organisation of any health and safety training the employer is required to provide to them. Regulation 5 gives safety representatives the right to inspect the workplace or part of it on giving the employer reasonable notice of their intention to do so, a right which is specifically exercisable where there has been a substantial change in the conditions of work.
The Health and Safety (Consultation with Employees) Regulations 1996 impose similar consultation obligations on an employer where there are no recognised unions, in which case, the consultation must be either with the employees directly or with safety representatives elected for the purposes of such consultation.
Consequences of breaching health and safety legislation
It is a criminal offence for an employer to contravene HASAW and/or the health and safety regulations. Where the Health and Safety Executive (HSE) considers that a breach has occurred, it may (i) give written or verbal advice to the employer; (ii) issue an improvement or prohibition notice; or (iii) bring a criminal prosecution.
It seems unlikely that any school would be prosecuted by HSE for taking steps consistent with the DfE’s guidance on the opening of schools and childcare settings to more pupils.
Civil law duties in relation to health and safety
Under what is known as the common law, every employer has a duty to take reasonable care for the safety of its employees. The common law duty includes an obligation to take reasonable steps to provide and maintain a safe place of work, a safe system of work and adequate equipment.
Schools and their staff have a duty under the common law to take care of their pupils in the same way that a parent would do.
Section 47 of HASAW provides that a breach of that Act or the health and safety regulations does not confer any right of action under the civil law. However, the duties imposed by the health and safety legislation may inform the courts’ approach to the common law duty of care, and evidence that statutory requirement has been breached may be relied on as evidence of negligence.
The fact that a school had acted in accordance with the DfE’s guidance would not necessarily be a defence to an action in negligence if the court took the view that the actions taken by the school were not consistent with its duty of care.
Claims for negligence are usually brought against the employer and not against individual members of staff.
Last but not least, paragraph 46.6 of the school teachers’ pay and conditions document (STPCD) imposes a contractual duty on a head teacher whose contract of employment incorporates those conditions to “Promote the safety and well-being of pupils and staff”. Head teachers who are not employed on terms which include the STPCD may also have express contractual obligations to promote the safety and well-being of pupils and staff.
Duties imposed by schools’ legislation
The respective duties of maintained schools and academies in relation to the well-being, health and safety of pupils, and the standards to be met in relation to school premises, are set out in different parts of the school’s legislation.
Section 21(5) of the Education Act 2002 (EA 2002) provides that, in discharging their functions relating to the conduct of a maintained school, the governing body shall promote the well-being of pupils at the school. “Well-being” is defined for these purposes as meaning the pupils’ well-being in relation to the matters mentioned in section 10(2) of the Children Act 2004. The relevant matters are wide-ranging, viz the pupils’ (i) physical and mental health and emotional well-being; (ii) protection from harm and neglect; (iii) education, training and recreation; (iii) the contribution made by them to society; and (v) social and economic well-being. The breadth of the duty placed on the governing body of a maintained school by section 21(5) of the EA 2002 requires them to carefully balance the pupils’ interests in relation to all of the prescribed matters.
In addition, section 175 of the EA 2002 imposes duties on local authorities and the governing bodies of maintained schools in relation to the welfare of children. In the case of a local authority the duty is to make arrangements for ensuring that their education functions are exercised with a view to safeguarding and promoting the welfare of children. In the case of a governing body the duty is to exercise their functions relating to the conduct of the school with a view to safeguarding and promoting the welfare of children at the school.
Section 29(5) of the EA 2002 provides that the governing body and headteacher of a community or voluntary controlled school, community special school or maintained nursery school shall comply with any direction given to them by the local authority concerning the health and safety of persons on the school’s premises or taking part in any school activities anywhere.
The School Premises (England) Regulations 2012 impose a general duty on a maintained school in England to maintain the school premises, and the accommodation and facilities provided therein, “to a standard such that, so far as reasonably practicable, the health, safety and welfare of pupils are ensured” (reg. 6). Specific obligations that may be relevant in the context of a maintained school’s duty to make its premises covid-19 secure include the following:
- to provide (i) suitable toilet and washing facilities for the sole use of pupils; (ii) separate toilet facilities for boys and girls aged 8 years or over, except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time; (iii) separate facilities for pupils who are disabled (although they may also be used by others); and (iv) suitable changing accommodation and showers for pupils aged 11 or over at the start of the school year who receive physical education (reg. 4);
- to provide (i) suitable accommodation for the short-term care of sick pupils, which includes a washing facility and is near to a toilet facility (reg. 5) and (ii) if the school caters for pupils with complex needs, additional medical accommodation which caters for those needs (reg. 5);
- to provide suitable drinking water facilities which are clearly marked as such and are readily accessible at all times when the premises are in use and are in a separate area from the toilet facilities (reg. 9);
- to provide suitable outdoor space in order to enable physical education to be provided to pupils in accordance with the school curriculum and to enable pupils to play outside (reg. 10).
Regulation 2 of the 2012 Regulations provides that any requirement that something provided under the regulations must be “suitable” means that it must be suitable for the pupils in respect of whom it is provided, having regard to their ages, numbers and sex and any special requirements they may have.
The statutory duties of academies in relation to the welfare, health and safety of pupils are to be found in the Education (Independent School Standards) Regulations 2014. By regulation 7, the proprietor of an academy is required to make arrangements to safeguard and promote the welfare of pupils at the school, having regard to any guidance issued by the secretary of state. Specific obligations which may be relevant in the context of making the academy covid-19 secure include duties to ensure that:
- good behaviour amongst pupils is promoted, by ensuring that (i) a written behaviour policy is drawn up setting out the sanctions to be adopted in the event of pupil misbehaviour (which could, for pupils in appropriate age brackets, include non-compliance with social distancing rules); (ii) the policy is implemented effectively; and (iii) a record is kept of sanctions imposed for serious misbehaviour (reg 9);
- relevant health and safety laws are complied with by the drawing up and effective implementation of a written health and safety policy (reg 11);
- pupils are properly supervised through the appropriate deployment of school staff (reg 14);
- the welfare of pupils at the school is safeguarded and promoted by the drawing up and effective implementation of a written risk assessment policy and that appropriate action is taken to reduce the risks that are identified (reg. 16);
- suitable toilet and washing facilities are provided for the sole use of pupils, including separate toilet facilities for boys and girls aged eight years or over (except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time), together with suitable changing accommodation and showers for pupils aged 11 or over at the start of the school year who receive physical education (reg. 23).
As to premises, reg. 25 of the 2014 regulations requires the proprietor of an academy to ensure that the school premises and the accommodation and facilities provided therein are maintained to a standard to ensure that, so far as is reasonably practicable, the health, safety and welfare of pupils are ensured. Specific obligations in relation to premises and accommodation include duties to ensure that:
- suitable accommodation is provided for the short-term care of sick pupils, which includes a washing facility and is near to a toilet facility and, where the academy caters for pupils with complex needs, additional medical accommodation is provided which caters for those needs (reg. 24);
- suitable drinking water facilities are provided which are (i) readily accessible at all times when the premises are in use and (ii) are in a separate area from the toilet facilities (reg. 28);
- suitable outdoor space is provided in order to enable physical education to be provided in accordance with the school curriculum and pupils to play outside (reg. 29).
Reg 31 states that any requirement that anything provided in relation to premises and accommodation must be “suitable” means that it must be suitable for the pupils in respect of whom it is provided, having regard to their ages, numbers and sex and any special requirements they may have.
Health and safety detriment
Under the Employment Rights Act 1996 (ERA), an employee will in some circumstances be protected from being subjected to a detriment or dismissed by their employer if they leave the workplace or refuse to work due to health and safety concerns. The right to protection from detriment is to be found in s. 44 ERA. Protection from dismissal is conferred by s. 100 of that Act.
Under s. 44(1)(d) and s. 100(1)(d) ERA, an employee is protected from detriment and dismissal if:
“(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work; ...”
Under s. 44(1)(e) and s.100(1)(e) of the ERA, an employee is protected from detriment or dismissal if:
“(e) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”
The rights conferred by ss. 44 and 100 ERA are not subject to any qualifying period of continuous employment.
Claims brought under either (d) or (e) will fail if the employee cannot show that they acted in circumstances of danger which they reasonably believed to be “serious and imminent”. What amounts to a serious and imminent danger is a question of fact which will depend on all the circumstances.
The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 state that they were made “in response to the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) in England”. However, the regulations were introduced on 26 March 2020 and, if and insofar as the incidence of infection diminishes over time, it cannot be assumed that the risk of contracting coronavirus will necessarily be regarded by an employment tribunal as “serious or imminent”.
The Employment Appeal Tribunal (EAT) has emphasised that whether circumstances of danger are serious or imminent must be judged in the light of the circumstances prevailing when the employee takes the steps which were the reason for the detriment or dismissal– see Balfour Kilpatrick Ltd v Acheson and others  IRLR 683, in which it was held that electricians who had been justified in walking out on the day on which circumstances of danger first arose were not protected when they were dismissed four days later for refusing to return to work, because the danger had passed.
On the other hand, the fact that a relevant circumstance is lawful or a permitted practice does not in itself make it unreasonable for the employee to believe that they are being exposed to a serious and imminent danger (Joao v Jurys Hotel Management UK Ltd UKEAT/0210/11). Nor is it sufficient that the employer disagrees with the employee’s assessment of the situation. The employee will still be protected if they are found to be have possessed a reasonable belief that circumstances of danger were serious and imminent (Ouduhar v Esporta Group Ltd  IRLR 730).
In cases under s.44(1)(e) and s.100(1)(e):
- the appropriateness of the steps the employee took (or proposed to take) are judged by reference to all the circumstances, including the extent of the employee's knowledge and the facilities and advice available to him at the relevant time (ss. 44(2) and 100(2));
- the danger may be danger to the employee personally or danger to others, including members of the employee’s family or members of the public (Masiak v City Restaurants (UK) Ltd  IRLR 780); and
- the employer will have a defence where it can show that it was (or would have been) so negligent for the employee to take the steps they took (or proposed to take) that a reasonable employer might have treated them as the employer did.
Unfortunately, the appellate courts have had little occasion to consider the circumstances in which an employee who leaves work or refuses to work due to health and safety concerns is protected under s. 44 or s. 100 ERA. It is therefore difficult to be confident that in any individual case such action will attract the protection conferred by the Act. This will be a highly fact-sensitive question on which different employment tribunals might take different views.
- In Maintained community schools and community special schools – Local Authority
- Maintained voluntary aided and foundation schools – governing body
- Academy – Academy Trust or MAT.