If you are in the world of teaching, it’s likely you were once a child who couldn’t wait to return to school after the summer holidays: new pencil case, new classroom teachers, a chance to catch up with friends and the excitement of a new school year.
While I hope you still feel that sense of positive anticipation ahead of a fresh new term, the reality is that many schools are now having to grapple with an assortment of fears and concerns from staff arising out of the pandemic and the government’s advice that schools should prepare to fully open in September.
Speaking to school leaders on a daily basis about their various workforce struggles, I would recommend the following approach to dealing with reluctant returners, while at the same time recognising the risks…
1. Remember that everyone is different. This isn’t a time for a “one-sized fits all” approach or a didactic management style. Employees will have their own subjective understanding of the risks involved in returning to the classroom. These will be based on their own unique circumstances and perception of risk. Some will have been shielding or have ongoing health issues, such as diabetes or asthma; others may be suffering from mental health issues; some will be pregnant; others may be living with household members who are vulnerable, and some employees will just be reluctant to accept that a school cannot provide a zero-risk environment.
2. Undertake appropriate risk assessments in line with government advice and in consultation with health and safety representatives.
3. Communicate: keep in touch with people to let them know that the school is following government advice as and when it arises in terms of preparing for the Autumn term. Give employees opportunity to raise concerns and ask questions during the summer holidays and at the start of the new term.
4. Discuss concerns with any individual employee who is expressing a reluctance to return to work. Take time to find out why an employee may be fearing a return to work. Arrange to meet with them, remotely if needs be, to discuss their individual concerns, go through the risk assessments for the school and decide if you need to undertake a vulnerable person’s risk assessment with the individual to address their own situation. Go through the risk assessment with them and try to pinpoint why they still concerned about returning to work. Address these if you can. Consider whether you should get medical advice if the concerns are health-related. If the employee is disabled, it is particularly important that you make all reasonable adjustments.
5. If, having done all this, they still refuse to return to work, you need to consider whether their refusal is reasonable or not as that will determine your next steps.
Taking this kind of approach should help to protect you from having to defend an employment tribunal claim. This is because employees have the right not to be subjected to any detriment by any act, or any deliberate failure to act, by their employer done on the ground that “in circumstances of danger which the employee reasonably believed to be serious and imminent and which [the employee] could not reasonably have been expected to avert, [the employee] 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”.
A detriment will include a decision to not pay an employee if they don’t come into work. If the employee is dismissed or resigns in this kind of scenario, you could face an automatic unfair dismissal claim. Despite your personal feelings, you are not able to defend such a claim by arguing that it was nevertheless “fair”.
With this in mind, and the potential for unlimited damages, you can see just how important it is to take the considered approach outlined above.