Shielding in education settings

Along with England’s third national lockdown, the government also required the return of shielding for the first time since it was ‘paused’ on 1 August 2020.

As the aim of shielding is to protect those in society who are classed as extremely clinically vulnerable and therefore at greatest risk of serious illness or death from Coronavirus, it is vital to correctly and sensitively manage this group of people in any workplace.

At the time of writing, whilst the children of key workers, and children deemed vulnerable can still go to school each day, there is a hope that schools, colleges and universities will move away from remote learning and get back to the classroom or lecture theatre at some point in the Spring.  We currently know that schools will not open before 8 March 2021 at the earliest.  However, there has been no indication of when shielding will be paused once more.  We hope that the vaccine means that this period of shielding will be shorter than the first.  However, the effects of the vaccine and the immunity it can offer, are yet to widely be seen.

The current shielding guidance strongly advises all employees to work from home and, if they cannot work from home, they should not attend work at all.  With many education settings partially opened (for children of key workers) and online learning the norm teachers and lecturers who are shielding can generally work from home at the current time.

But what about when education settings re-open?  How does the employer approach the difficult issue of a clinically extremely vulnerable member of staff?  What options do educators have in a setting where social distancing is difficult, if not impossible?

Agreed temporary change of role

If a shielding employee can no longer effectively work from home once young people return to school, college or university, employers may be able to discuss and agree a temporary change of role where working from home is possible.

We recommend that this is agreed in writing with an indication of whether the changes are temporary and, if so, for how long the employer and employee envisage the temporary change lasting.

Furlough or paid leave

If the employee qualifies, placing them on a period of agreed furlough would be an alternative temporary solution.  The furlough scheme has been extended until 30 April 2021, with the government paying 80% of an employee’s salary for hours not worked capped at £2,500 each month.  Employers are required to pay wages, National Insurance Contributions (“NICS”) and pension contributions for any hours worked.  If the employee does not work at all, employers must pay NICS and pension contributions for the hours not worked.

If the employee does not qualify for furlough, in the absence of a contractual right to place them on unpaid leave (which is rare) or agreement by them to place them on unpaid leave, paid leave remains the only option.

We do not consider that placing the employee on unpaid leave without their agreement or the contractual right to do so would be advisable as it exposes employers to an ongoing breach of contract/deductions from wages claim.

Employees may also be shielding for a reason which classes them as disabled under the Equality Act 2010.  Employers should avoid making any changes or implementing policies which adversely affect clinically extremely vulnerable people, as it may amount to disability discrimination.

Employee waiver?

Employers have an obligation under the Health and Safety at Work Act 1974 “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all [their] employees”.  Therefore, even if an employee offered to sign a waiver, confirming they are willing to attend the workplace whilst they are shielding, this is not advisable and would not avoid the employer’s strict Health and Safety obligations.

We believe the conflict between education settings returning to in-person teaching and the needs of shielding employees is a matter which could arise soon, given the government’s understandable desire to keep educating our young people.

If you have any queries about shielding and education, or indeed any other impact of Coronavirus on your establishment, our Education team will be happy to help.  Please do get in touch.