January schools advice
This advice applies to all primary schools, special schools, SEND and early years settings in England.
In UNISON’s view, it is unsafe for you to attend the workplace at present if your school is fully opened to all pupils.
Our advice is that you should decide to advise your head teacher or employer that you will not be attending the workplace but will be available to work remotely from home or only being in school supporting provision and the learning of key worker and vulnerable children if necessary.
Here is a letter for to send to your head teacher or employer:
When sending this letter, you will also be asserting your legal right to be protected against any detrimental action by your employer, including to your pay. This right is explained in full in the model letter.
Our advice applies for at least the first two weeks of term, the same period for which secondary schools and some primary schools have already been instructed by the government to move to remote learning.
UNISON is issuing this advice after careful consideration of the advice which was apparently given to the government by the SAGE advisory group and the current position on infection rates.
We have published additional guidance for members working in special schools and colleges and alternative education settings. This guidance works alongside the wider guidance for all schools members outlined on this page.
Please below for further guidance on early years settings.
Can I be disciplined or lose pay if I decide to stay at home for my own safety?
Section 44 of the Employment Rights Act 1996 is clear that employees should face no detriment if they leave the workplace or refuse to return because they reasonably believe that attending work represents a serious and imminent danger.
If an employer threatens to remove pay or subject an employee to disciplinary actions where the employee leaves work in the above circumstances, then UNISON considers that the employer will be acting unlawfully. This doesn’t mean that you should not work from home, of course, if this is practicable. But it does mean that the employer cannot lawfully deduct pay or take disciplinary actions against you.
In the first instance, you should contact your branch for further advice. UNISON is committed to providing legal support to any member subject to detriment where they have exercised their right to decline to attend a dangerous workplace.
What is the current position of headteachers on this issue?
Headteachers are sympathetic to the risks facing school staff. The headteacher and school leader unions the National Association of Headteachers (NAHT) and the Association for School and College Leaders (ASCL) have initiated legal action against the Department for Education on their decision to reopen schools and proposed arrangements for covid testing in schools.
They believe that the current situation has created intolerable risk to many school communities and they have also called on the government to move all schools to home learning for a brief and determined period for most children.
We understand that the NAHT are advising their members that staff should not face any detriment for protecting their own health and safety.
Safety in schools
We understand that SAGE has advised the Government that schools should move to remote learning in order to help reduce the rate of spread of the COVID-19 virus.
The advice given by SAGE has only been adopted in relation to secondary schools and to primary schools in some Tier 4 areas. Given the overall increase in infection rates, however, we believe it is unsafe for schools to reopen in any area at present.
Infection rates are far higher than at the end of last term. This increase has been promoted by the new variant of the COVID-19 virus which was not properly understood at that time. These developments mean, in our view, that the risk assessments in place in schools at the end of last term cannot now be relied on by employers to demonstrate that workplaces are safe in these changed circumstances. We are calling on all employers in all schools, whatever age group they serve and whatever the local tier of restrictions, to review their risk assessments and safety measures before asking employees to return to the workplace.
Face to face provision
We accept that schools may need to provide face to face provision for vulnerable students and the children of key workers and are also expected to open for some exam groups.
This should happen after risk assessments have been reviewed and appropriate measures taken to ensure safety, including for necessary social distancing and limits on group sizes.
We are advising members that they should agree to make themselves available to attend the workplace to support these students on a rota basis. The model letter you can send to your headteacher/employer makes clear you are making yourself available to work from home or to support with this limited in-school provision.
Petition to make schools safe and protect communities
Along with the teachers’ union, the NEU, we have launched a public petition calling on the government to use this period of remote learning to establish how quickly the new variant of the virus is transmitted, and to establish measures to keep schools more “COVID secure”.
Please see below for further advice for early years settings:
Will nurseries stay open?
The government announced on 30 December that primary schools in some areas of London and the South East with particularly high incidences of Covid-19 would close. However, the Department for Education stated that early years settings should remain open, even in these areas where primary schools are closed.
The guidance states that, ‘Where primary schools are open only to vulnerable children and the children of critical workers, there is discretion for school-based nurseries in primary schools to follow the arrangements for the primary school and delay re-opening, or to open as usual on 4 January.
All non-reception early years settings (nurseries not part of primary schools, maintained nursery schools and childminders for early years children etc.) should continue to open or re-open as usual. Wraparound care for school-aged children should only open for children who are eligible for on-site school attendance.’
What is UNISON’s view on this?
UNISON believes that early years settings must be treated in the same way as primary schools and should be closed in those areas of high incidence. Where schools have the option of closing school based nurseries we would strongly recommend that they do so.
The DfE has failed to provide any scientific advice for the different treatment of early years settings. If the Department for Education is to advise early years providers to continue to provide care while instructing other education providers to close, it must provide a clear and unequivocal scientific basis for doing so. If this evidence doesn’t exist, then the government cannot and must not put the safety of staff and local communities at risk.
UNISON is calling on the government to provide this evidence and further review guidance and increase support for the early years sector.
Can I refuse to attend work if I believe that my workplace is unsafe?
This guidance applies equally to early years staff.
Particularly for staff working in private nurseries, we would recommend that this is exercised only as a last resort if you are extremely concerned about your safety.
What else is UNISON calling for?
UNISON believes that all early years settings will need to review their risk assessments as a result of the increased transmissibility of the new variant of Covid-19 and the increased risk to staff. We are calling for a review of the size of so called ‘bubbles’ and restricting further the number of children in these groups. Settings will also need to re-assess the risk to vulnerable staff and allow home working where possible.
We are calling on the government to include early years staff as a priority group for both testing and vaccination along with all other education staff.
Early years staff must have the same rights and protections as other education staff. We know that staff are unable to apply social distancing within early years settings, which already places them at increased risk. We need to know more about the risk to staff and children about the impact of the new variant of the virus among young children before placing staff and communities at greater risk by re-opening all nurseries while infection rates are so high.
The government also needs to increase the short term funding support to early years settings during this second wave to ensure that we have a sustainable sector when demand returns to normal.
We will keep you updated on any new advice or guidance via email. Please also follow our Facebook page for the latest information.
In the meantime, please use the model letter to notify your head teacher or principal of your position.