The health and safety responsibilities owed by school and college employers
Schools have legal responsibilities under the Health and Safety at Work Act 1974 to ensure the health, safety and welfare at work of all employees and to ensure other persons, not in their employment, are not exposed to a risk to their health and safety.
The Management of Health and Safety at Work Regulations 1999 require employers to undertake a suitable and sufficient assessment of the risks to health and safety of employees and others, such as pupils and parents, affected by the conduct of the employer’s undertaking. The Regulations also require the risk assessment to identify the measures necessary to comply with the statutory duties owed by the employer. Where the employer implements such measures, the primary duty is to avoid risks or combat the risks at source. The duties also include having appropriate procedures in place in the event of a serious and imminent danger.
Further, the relevant statutory provisions include the following:
- Under the 1999 Regulations, any risk assessment shall be reviewed by the employer or self-employed person who made it if there has been a significant change in the matters to which it relates;
- Every employer shall enable persons who are exposed to serious, imminent and unavoidable danger to stop work and, save in exceptional cases for reasons duly substantiated (which cases and reasons shall be specified in those procedures), require the persons concerned to be prevented from resuming work in any situation where there is still a serious and imminent danger.
- In addition, the employer owes duty to inform and consult with safety representatives. Under the Safety Representative and Safety Committee Regulations 1977 (recognised unions) and the similar regulations applying where unions are not recognised, every employer shall consult safety representatives in good time with regard to the introduction of any measure at the workplace which may substantially affect the health and safety of the employees the safety representatives concerned represent.
- Employers must ensure that employees who are exposed to risk to their health and safety which have not been adequately controlled by other means are provided with suitable personal protective equipment.
- Finally, employers owe duties to assess risks and to protect employees against exposure to harmful biological agents under the Control of Substances Hazardous to Health Regulations 2002.
Sections 44/100 Employment Rights Act 1996
Under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from detriment or dismissal where there exist circumstances of danger which they reasonably believe to be serious and imminent, and they leave or propose to leave, or otherwise refuse to return to their place of work (or any dangerous part of the workplace. There are also protections under these provisions for those who take appropriate steps to protect themselves or others in circumstances which the employee reasonably believes amounts to a serious and imminent danger.
If you are concerned about these legal rights as they apply to you, further advice should be sought from your branch.
For more information and advice click on link to UNISON web site here
Sunday Jan 17, 2021 11:00 AM
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Barnet UNISON statement:
When lockdown was first instigated in March last year the Parking Service was temporarily suspended not just in Barnet but across a number of London Councils.
We are now in a more critical situation in that this latest COVID strain is clearly more transmissible with 1 in 30 Londoners testing positive for COVID.
The London Mayor has stated “We are declaring a major incident because the threat this virus poses to our city is at crisis point. If we do not take immediate action now, our NHS could be overwhelmed and more people will die.”
Our members are genuinely fearful that there is a very real and present risk to themselves and a risk to their families. There is increased risk of contracting COVID when travelling to and from work on public transport and it is widely accepted that there is an increased risk for members of the BAME community. Please note a high proportion of the NSL workforce are from the BAME community
Our members working for NSL are at a loss to understand why the Parking Service which is not an emergency service is carrying on as business as usual.
The spirit of the lockdown appears to be trying to limit the mixing and movement of people to only those services which are critical.
Parking Enforcement is not am essential/critical service.
Barnet UNISON will be organising a zoom meeting for our NSL members and will be reporting back to them as to what I have been doing on their behalf.
We are asking that in light of the mounting pressure on our London Hospitals and NHS staff can the decision to keep Parking Services be reviewed as a matter of urgency?
IMPORTANT: This is the joint trade union email sent to all Schools and Leaders.
We apologise for writing to you at such a difficult time. We know the intense pressure schools are under, both as a result of Covid-19 and because of the repeated sudden changes in Government policies.
However, yesterday the Department for Education (DfE) e-mailed you about recent advice UNISON and the National Education Union (NEU) gave its members on the safety of face-to-face teaching in schools.
This email followed Gavin Williamson saying in Parliament: ‘I’d like to thank both the National Education Union and UNISON for recognising the fact that the action that they took and the advice that they gave their members on Sunday was incorrect and that they have withdrawn that advice”. Gavin Williamson was simply wrong. At no point have UNISON or the NEU said the guidance and advice to members was incorrect.
That advice was issued before 4 January when Government was directing all schools to remain fully open to all pupils. On the 4 January, Government directed the closure of schools except for the attendance of vulnerable children and those of critical workers. Because of this radical change of Government direction, we removed the advice on section 44 from our websites. But this emphatically does not mean we believe face-to-face work with full or near full classes in schools is safe in the current circumstances – far from it. Neither does the removal of this advice from our websites indicate that we do not believe it was the right advice to give at the time.
Contrary to the impression given by the DfE circular, the existence of the new strain of the virus greatly exacerbates the serious risks to the health and safety of those working in schools. It is irrelevant that the new strain of the virus may not cause more serious illness in those children or adults who are infected by it. The increase in risk arises from the fact that the new strain is highly transmissible, between 50-74% more transmissible than pre-existing variations of Covid-19, according to London School of Hygiene and Tropical Medicine. The historic data on infection rates among teachers referred to by the DfE fails to capture the greatly increased threat arising from the new strain.
It is because of the new strain that infection rates and the R number have dramatically increased since December. It was precisely because of the “increase in risk associated with the new variant” that SAGE recommended closing schools as part of a strategy of strengthening control measures at its meeting on 22 December. That is why the Government finally decided to close schools to most pupils; and that is why school staff faced a greater risk of catching Covid-19 than they did before. This is, or should be, obvious to the DfE and Government.
In that light, is completely inadequate for the DfE to assert that the existing controls in school “create an inherently safer [sic] environment for children, young people and staff” and that the “way to control this virus is the same, whatever the variant”. Members who work in schools have a right to work in a safe working environment, and workers who reasonably believe they are facing serious and imminent danger have the right to leave the workplace. The effect of those rights must be fundamentally reassessed owing to the greater risk of transmission posed by the new variant of Covid-19. The same applies to the existing control measures adopted in schools.
We only summarise the relevant legal provisions below. The key point is that all these legal duties must now be viewed in circumstances where Covid-19 is much more transmissible than it was before owing to the new strain.
- Schools owe duties under s 2 of the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health and safety of their employees. This includes a duty to provide work systems and work environments which are, so far as is reasonably practicable, safe and without risk to health. Schools owe similar duties to others, who are not in their employment, under s.3 of the Act.
- Under the Management of Health and Safety at Work Regulations 1999, employers must undertake a suitable and sufficient assessment of the risks to health and safety affected by the conduct of the employer’s undertaking. The risk assessment must be reviewed whenever there is a “significant change in the matters to which it relates”. The new strain of Covid-19 triggers this duty.
- Employers must establish appropriate procedures which enable employees to leave or stop work if they are exposed to serious, imminent and unavoidable dangers.
- Measures for controlling risks to health and safety must be adopted in accordance with a hierarchy of measures set out in Schedule 1 to the 1999 Regulations. The primary duty is “avoiding risks”, followed by “evaluating risks which cannot be avoided” and then “combating the risks at source”. All these duties point towards avoiding face-to-face teaching and teaching on-line given the high risk of transmission posed by the new strain.
- While there is a duty to provide suitable PPE to those who are exposed to risks to health and safety, this is only intended as a last resort, where a “risk has not adequately been controlled by other means”.
- Schools owe duties to assess risks and to protect employees against exposure to biological agents, such as the new strain of Covid-19, under the COSSH Regulations 2002.
- Employers must inform and consult with safety representatives under the Safety Representatives and Safety Committee Regulations 1977 (and the linked regulations where no union is recognised) on all matters to do with health and safety. This should include consultation on the appropriate steps to take in light of the risks posed by the new strain of Covid-19.
- Finally, under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from detriment or dismissal where there exist circumstances of danger which they reasonably believe to be serious and imminent, and they leave or propose to leave, or otherwise refuse to return to their place of work. There are also protections under these provisions for those who take appropriate steps to protect themselves or others in circumstances which the employee reasonably believes amounts to a serious and imminent danger., These rights remain very relevant to those engaged in face-to-face work in schools, especially in light of the new strain of Covid-19. Employees must not be subjected to any disadvantage, such as deductions from pay, where they exercise these rights.
We hope that that this makes our position clear and corrects the impression given by the e-mail from the DfE.
Finally we would like to show our appreciation for the work of our sister head teachers unions NAHT and ASCL during this difficult period. We have shared this letter with them and know that they are as exasperated with the Government as you are.
UNISON’s National Schools Committee and representatives of UNISON’s FE committee met with Department for Education (DfE) and NHS Test and Trace officials on Tuesday 22nd December to discuss the Government’s plans for mass testing of school staff and pupils in secondary schools and colleges in England in January. Amongst a host of issues the committee highlighted concerns about the reliability of the proposed tests, numbers and roles of staff that would be involved, potential increased workloads, full training, availability of appropriate PPE, face coverings and the roll out of the programme to Primary and Special Schools.
In particular the committee made clear that whilst we support the use of mass testing in schools, that due to concerns with the high rate of false negative lateral flow test results , this test should not be used as an alternative to self-isolation of close contacts and bubbles following conformed Covid cases. The British Medical Journal, World Health Organisation, Royal Society of Statisticians and Royal College of Pathologists have all warned that these tests can miss a substantial proportion of cases and should not be used alone to identify the infection. Additionally, government figures from a mass testing pilot in Liverpool in over 5,000 people without symptoms showed that up to half of positives were missed, which included up to 30% who had high viral loads and so had a higher risk of infecting others. Recent press reports have also suggested that some of these community based pilots may be suspended whilst further analysis is carried out.
Therefore UNISON calls on the DfE not to rush ahead with programme in January, but to work with schools on a sensible timetable. It is also vital that the Department amends its mass testing guidance to make clear that schools should use testing only as an ‘additional’ measure to identify potential asymptotic cases and not as an alternative to self-isolation of all close contacts and bubbles. DfE communications should also explain that the lateral flow test cannot confirm that an individual has not been infected with Covid-19, as this could lead to a false sense of security by people who test negative, which could lead them to unintentionally spread the virus.
We also call on the DfE to advise schools to continue on-line learning in January beyond the first week currently proposed. Full re-opening should only commence when schools and local public health authorities are satisfied that local infection rates are at levels which make it safe for staff, pupils and communities to return. We continue to call on government to rapidly expand the provision of laptop and internet access to ensure that all pupils have access to online learning.
UNISON’s schools committee previously agreed that:
- We support mass testing in schools to try stop the spread of the virus (on a sensible timetable)
- Any testing site in a school must be fully planned and risk assessed with union engagement
- Staff should only undertake the testing duty if they volunteer, and if they are comfortable with their competence after appropriate training – in line with Department for Education guidance ‘Supporting pupils at school with medical conditions’.
- Staff involved in the testing programme should have correct PPE, appropriate clinical oversight and clear guarantees around any potential liabilities
- The work of staff volunteering to participate should not be passed to other current staff, who are already overworked.
- Any additional staff time must be fully paid at the appropriate rate
- Due to reported high percentage of false negatives generated by the ‘lateral flow test’ being proposed it should only be used an additional measure. Bubbles and self-isolation, alongside all additional other safety measures, should be retained for the foreseeable future.
- Staff asked to take a test themselves as part of a mass lateral flow testing programme where cases have not been identified, may do so voluntarily, but it should not be compulsory. UNISON will encourage staff to participate fully in the testing programme, subject to the above points
Thursday 14 January 2021 6 pm.
Dear Barnet UNISON members
Things are changing so quickly and the rate of infection extremely worrying as are the increasing number of deaths from COVID.
UNISON has already responded to the clear and present danger in the schools workplace which has seen many of our members send in section 44 letters to their employers.
You can read about these letters here on our website http://www.barnetunison.me.uk/wp/2021/01/03/important-update-for-barnet-unison-members-in-schools/
Barnet UNISON sincerely hopes you all had the best and most relaxing time possible over the Christmas break considering the circumstances. It has certainly not been made easy by the Government.
We have continued to be exposed to one last minute decision after another and with dubious positive effect on keeping infection rates low as they are all botched jobs. Anxieties have gone through the roof and we are all running around trying to pick up the pieces. Some pieces remain sadly permanently broken. We are offering this zoom meeting to all our members to get a sense of how each employer is handling the latest crisis and offering our advice.
Our nursery schools have shown that our front line members can bring about the change which is needed to keep communities safe.
It is worth noting how different this all could have been. Two weeks before the Christmas break the German Government could see the direction of travel of the infection rates. They decided to cut their losses and gave a full half week notice of a total lockdown to start one week before the Christmas break and which would continue for one week after the Christmas break. This was disappointing for its citizens but at least they then knew exactly what they were dealing with and could PLAN!
We want to be able to support all of our members regardless of which employer you work for.
We want to know if you are well and if you feel safe at work.
Our all members UNISON meeting is on Wednesday 6 January 2021 6:30 pm.
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