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Risk assessments

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Summary: 

  • Employers have a legal obligation to carry out risk assessments
  • That risk assessment must be kept under review and re-assessed if there is any reason to suspect that it is no longer valid, or there has been a significant change in the matters to which it relates
  • A risk assessment should be completed before the school reopens or, where schools have remained open, before any extension to provision is implemented
  • NAHT understands that members are not health and safety experts.  However, members having concerns or reservations about the risk assessments in their schools should seek advice from us on how they should voice their concerns with their employers and local authorities
  • In some cases, we know that the LA or trusts are carrying out risk assessments. Where this is the case, the person charged with carrying out a risk assessment at any individual school should be encouraged to consult the head teacher in the course of undertaking the assessment and before finalising their conclusions. If dialogue with the risk assessor fails to resolve the head teacher’s concerns about the conclusions of the risk assessment, the head teacher should raise their concerns with the full governing body or board of directors/trustees
  • If the governing body or board of directors/trustees ultimately instructs the head teacher to proceed with decisions in relation to the school that are predicated on a risk assessment which the head teacher regards as unsuitable or insufficient, the head teacher will clearly be in a difficult position. They should take specific individual advice about the options open to them at that juncture, which would include complying with the instructions given while recording their personal disagreement with them or refusing to comply with those instructions, with whatever consequences might ensue for the head teacher’s employment relationship with their employer
  • In some cases, the leaders themselves will be carrying out the risk assessments and may be challenged on these. If this occurs, a situation may arise in which a school leader carries out their risk assessment, but the employer says that it is ‘wrong’ or overly cautious
  • In maintained schools, it is our view that the head teacher does have the power to close or refuse to open the school. However they are accountable for any such decision to the governing body, must comply with reasonable directions of the governing body and may find themselves subject to LA intervention
  • In academies, legislation does not give the CEO/principal/head teacher of an academy the responsibility for day-to-day management of the school. That rests with the trustees unless it has been delegated to the CEO/principal/head teacher. The Department for Education's (DfE) model Academy Articles of Government does not delegate powers to the CEO/principal/head teacher, but permits the trustees to do so.  They may do so in their own scheme of delegation and/or employment contract. Any decision to close or not to reopen the school should, therefore, be taken in consultation with and with the approval of the trustees.

Detail 

The DfE's advice on reopening schools leaves many unanswered questions, which will give rise to difficulties for employers in conduction risk assessments. Examples include the following:

  • Lack of clarity over transmission of the virus from children to adults
  • Unclear guidance on the treatment of certain categories of adults who appear to suffer disproportionately from the virus. 

These are just two examples of difficulties employers may face in conducting risk assessments prior to making decisions on reopening schools or extending school provision. 

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
  • 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
  • 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”. 

A risk assessment should be completed before the school reopens or where, schools have remained open, before any extension to provision is implemented. 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. 

The duty to carry out a ‘suitable and sufficient’ risk assessment rests with the employer.  

As explained in NAHT's briefing on the health and safety duties of schools, a risk assessment will not comply with regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR) unless it is: 

  •  “suitable and sufficient” and 
  • carried out by a “competent person”, who has “sufficient training and experience or knowledge and other qualities” to enable them properly to assist the employer with undertaking a risk assessment. 

 

Where a head teacher has any concerns, either as to the competence of the person who has been appointed to carry out a risk assessment or suitability and sufficiency of any assessment which has been undertaken, they should raise those concerns at the earliest opportunity. Where the concerns relate to the competence of the risk assessor, they should be raised immediately, initially with the chair of the governing body or, in a multi-academy trust, the chair of the board of trustees. If this fails to resolve the head teacher’s concerns, they may then wish to wait for the outcome of the risk assessment before pursuing the issue further. 

The person charged with carrying out a risk assessment at any individual school should be encouraged to consult the head teacher in the course of undertaking the assessment and before finalising their conclusions. This will give the head teacher an opportunity to discuss any concerns with the risk assessor with a view to reaching a shared view of the relevant risks and the measures to be taken to address them.

If such consultation does not occur, or the head teacher and risk assessor are unable to reach agreement on the conclusions of the risk assessment, the head teacher should raise their concerns with the chair of the governing body or board of directors/trustees, who may be able to facilitate a dialogue with the risk assessor.

If further dialogue with the risk assessor fails to resolve the head teacher’s concerns about the conclusions of the risk assessment, the head teacher should raise their concerns with the full governing body or board of directors/trustees. Should this become necessary, it would be sensible for the head teacher to set out in writing (i) any and all respects in which they consider the risk assessment to be unsuitable or insufficient and (ii) any reasons for disagreeing with the assessor’s recommendations as to the measures to be implemented. The head teacher could also seek an opportunity to address the governing body or board of directors/trustees to explain their concerns, with a view to persuading them to reach the same view. 

If the governing body or board of directors/trustees ultimately instructs the head teacher to proceed with decisions in relation to the school that are predicated on a risk assessment which the head teacher regards as unsuitable or insufficient, the head teacher will clearly be in a difficult position. They should take specific individual advice about the options open to them at that juncture, which would include complying with the instructions given while recording their personal disagreement with them or refusing to comply with those instructions, with whatever consequences might ensue for the head teacher’s employment relationship with their employer. 

A situation may arise in which a school leader carries out their risk assessment, but the employer says that it is ‘wrong’ or overly cautious. The school leader/risk assessor says it is unsafe to open, but the employer nevertheless wants to open. It is important that members and employers do everything they can to avoid a situation where our member is in an irreconcilable conflict with his or her employer. Where such a situation does arise, it could lead to employment implications. 

In maintained schools, it is our view that the head teacher does have the power to close or refuse to open the school; however, they are accountable for any such decision to the governing body, must comply with reasonable directions of the governing body and may find themselves subject to LA intervention. We should be extremely cautious in our advice to a member who is proposing to close/refuse to open his or her school against the wishes, advice or instruction of his or her employer. 

In academies, unlike in maintained schools, legislation does not give the CEO/principal/head teacher of an academy the responsibility for day-to-day management of the school. That rest with the trustees unless it has been delegated to the CEO/principal/head teacher. The DfE's model Academy Articles of Government does not delegate powers to the CEO/principal/head teacher, but permits the Trustees to do so.  They may do so in their own scheme of delegation and/or employment contract. Any decision to close or not to reopen the school should, therefore, be taken in consultation with and with the approval of the trustees.

 

 

First published 21 May 2020