Heads HR Covid – February 2021

25th February 2021

The Government issued new guidance for schools in February 2021 however the only change, in relation to staffing, is about recruitment however this update provides guidance about the following points:

Changes to CEV categorisation

On 15th February 2021, an additional 1.7 million people were re-categorised as Clinically Extremely Vulnerable.  This is due to a new model that was developed that takes into account extra factors rather than just health.  This calculation includes things such as age,ethnicity, deprivation (by postcode) and weight to work out an individual’s risk of becoming seriously ill if they were to catch Covid-19.  It also looks at age, underlying health issues and prescribed medications.

The new model considers this “combination of factors” and puts them together to reach a score.  Those added to the list will be sent letters by the NHS informing of them of their new status.

The government will be writing to all people identified as CEV to confirm the new guidance and advising them to shield until 31 March 2021.

Action: Confirm all employees are aware of the changes to CEV category and the ‘new model’, ensure they know who to talk to about any concerns.  You may want to contact your Health and Safety Advisors to ensure that your current risk assessment tools are up-to-date.

Can CEV employees return to work if they’ve had the Covid-19 Vaccination?

Even if an employee has had both doses of the vaccine, they should continue to follow the current shielding advice until further notice.  The advice is that CEV employees should work from home because the risk of exposure to the virus is high, if employees cannot work from home, then they should not attend work.

Can employees be required to have the Covid-19 vaccination?

Teaching unions are pressing the government to commit, after the first phase of vaccinations for the most vulnerable in society has been rolled out, that education staff should be considered as a priority for vaccination (particularly those working in specialist provision and early years). They believe this reflects the crucial role they play and also the unique working environment school staff are operating in.

In most cases the answer will be no.  Some employers may decide it is necessary for all employees to be vaccinated but this should only be the case if getting the vaccine is required for someone to do their job. Under the Health and Safety at Work Act 1974, employers may have a duty to ensure a safe working environment by enabling vaccination of their employees in circumstances where they will have close contact with the clinically vulnerable. For example, it could be argued that requiring a care home employee to be vaccinated is reasonable because of the high-risk nature of the work.

However, it’s not quite that simple, and any employer mandating a vaccine would need to balance the proportionality of the interference with any article 8 human rights, against the amount the risk reduced by vaccination.

If the effect of the vaccine is to suppress transmission over and above social distancing measures, it could be possible at least in theory to justify this course of action.  However, at present there are many unknowns in relation to the impact the vaccine will have and ‘forcing’ anyone to receive a vaccine injection under duress, under UK law, could constitute an unlawful injury. A vaccination requires an individual’s informed and voluntary consent.  It may also be that someone’s anti-vaccination position could amount to a protected philosophical belief under the Equality Act 2010. If a fervent anti-vaxxer could establish that their belief was genuinely held and worthy of respect, then they may find success at a tribunal.

We advise that Schools talk with their employees about the vaccine and share the benefits of being vaccinated.  For health advice about the vaccine in England, see coronavirus vaccine information from the NHS

If someone does not want to be vaccinated, the employer should listen to their concerns. Employers should be sensitive towards individual situations and must keep any concerns confidential.  Some people may have health concerns, for example allergies. 

Can employees be required to have a Covid-19 test?

If an employee does not agree to take a test, they cannot be forced to do so.  You need to explain the process to staff and show them a privacy notice. If they then choose to participate, they’re committing to self-administering the test and providing their results. The privacy notice also explains what personal data is required to participate in the programme.

Information about employees’ health, including whether or not they have tested positive for coronavirus, or have particular symptoms, is special category data under the General Data Protection Regulation (2016/679 EU) (GDPR). Employers considering testing employees for coronavirus should do so only if they can comply with their GDPR obligations relating to the processing of such data.

The Information Commissioner’s Office (ICO) has published guidance for employers on workplace testing. The guidance states that employers are likely to be able to rely on their health and safety duties as a ground for processing special category data in these circumstances, but that the employer should carry out a data protection impact assessment before carrying out testing and should process employees’ health data only if this is necessary and proportionate. They should collect the minimum data necessary and ensure that this is kept secure. They must provide employees with information, including on what health data will be collected, what it will be used for, who (if anyone) it will be shared with and for how long it will be kept.

In certain circumstances, it may be open to employers to take disciplinary action against an employee who refuses a test, but this would depend on factors such as the nature of the employee’s work and any evidence on the necessity of testing in the particular environment.

The Government has published guidance for employers and third-party healthcare providers on coronavirus testing.

Quarantine and staff holidays

I know it may seem unlikely right now but as lockdown eases employees may start considering booking holidays abroad.  Recently, there have been numerous articles about whether people can book holidays abroad and the governments new quarantine rules.  As you know, under current UK COVID-19 restrictions, everyone must stay at home, must not travel, including abroad, unless they are legally permitted reason to do so. It is illegal to travel abroad for holidays and other leisure purposes. Check the rules that apply to you in England.  However, over the next few weeks/months things may (hopefully) change and therefore employers need to be mindful that employees may start considering booking a holiday abroad.

Action: The school leadership team need to decide how they will respond to any requests for paid or unpaid leave of absence in relation to holidays abroad and/or what would happen in the event that going abroad leads to an employee not being able to return to work.  Our advice is to ask all employees to discuss any foreign holidays with the school before they are booked or remind them that any plans they make, must ensure they are available for work in accordance with their contracted hours.  The government guidance on quarantine has been updated and at present all UK residents returning from abroad must quarantine for 10 full days.

Recruitment during Covid-19

The new government guidance has been updated to recommend that schools should avoid face to face interviews.  However, it also states that recruitment should continue as usual. As DfE advises limiting the number of visitors, the guidance recommends schools consider a flexible approach to interviews, with alternative options to face to face interviews offered where possible.

It states, where face to face meetings are necessary, schools should make clear to candidates that they must adhere to the system of controls that schools have in place. Schools will also have the discretion to require face coverings for visitors where social distancing cannot be managed safely.

Schools must continue to comply with their legal duties regarding pre-appointment including having regard to part three of the statutory safeguarding guidance keeping children safe in education.

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