Unions have fired off a Covid-19 “liability” warning shot to school and college leaders – quoting the health and safety laws “you are exposing yourself to by following the current deeply flawed guidance”.
A joint letter, seen by Schools Week, from the National Education Union, Unite, Unison and GMB was sent last night to headteachers and principals of college groups with schools to make clear that the Department for Education has placed the wider reopening from June “on the shoulder of the employer and on you”.
It reminds them that the Health and Safety at Work Act 1974, as well as four other pieces of legislation, “places a duty on employers to ensure the health, safety and welfare” of their staff and students before stating the unions will be advising members of their “legal rights should any member contract Covid-19 upon returning to school”.
“We believe it is important you fully understand the potential liability you are exposing yourself to by following the current deeply flawed guidance,” the letter added.
Multiple education unions have warned against the government’s plans for schools and colleges to start their wider reopening from 1 June, citing safety as their biggest concern.
The joint letter claims that the scientific evidence is “yet to be released that establishes that the measures contained within the DfE guidance are capable of ensuring the risk to pupils, staff and the wider community is reduced to an acceptable level”.
Andrew Banks, a partner and health and safety expert at law firm Stone King, told Schools Week that it is “difficult to see” how prosecution would follow in the event of someone associated with the school or college contracting coronavirus if they “ensure that their [health and safety] guidance is followed and their risk assessments are suitable and sufficient”.
But if a school or college has not followed the guidance or there are “other shortcomings” it is more likely that the Health and Safety Executive would “engage to ensure they tighten their processes rather than move straight towards an investigation with a view to prosecution,” he said.
“It is important to emphasise that the priority and primary purpose in all of this is the safety of all children and staff.”
Banks added: “In spite of the recent rider added to the government guidance, on balance our view remains that by following the guidance they will have undertaken all that is reasonably practicable and, in legal terms, covered themselves in terms of their liability.”
Education unions’ resistance to the current plan for the wider reopening of schools and colleges has been questioned. Speaking in parliament last week, Gavin Williamson, the education secretary, accused them of “scaremongering”.
The unions used last night’s letter so say that they “trust” schools and colleges will “understand that we are not acting without good reason, but from the position that we all share responsibility for ensuring there is no second spike of Covid-19 in the UK”.
“We recommend that you remain alert to these duties when you are assessing whether your school is safe to be opened more widely,” it states.
“We appreciate that a decision of this magnitude, with its serious implications, is not an easy one to make.”
The unions said their reps are “there to assist and support you in making that decision” and they believe that schools and colleges should seek support from their local authority, “although any decision does ultimately rest with an individual school”.
“We are clear the current situation is not the fault of the school, or its leadership, and that the school has to plan for all eventualities,” the letter added.
Schools Week has asked the unions if a letter similar to this is being worked on for colleges specifically.