Staff management, recruitment and retention FAQs

We are reviewing all FAQs on a regular basis – adding new questions as they arise, updating answers to existing questions as information changes, and removing obsolete questions. 

If you have a question which is not covered here, and you are an ASCL member, please email coronavirus@ascl.org.uk, and we will try to find an answer and share it here. 

These FAQs are provided for general information purposes only and do not constitute legal or professional advice. They represent ASCL’s views, but you rely on them at your own risk. For specific advice relevant to your particular circumstances, please contact your employer’s HR service or legal advisers.

The government guidance on the furlough scheme says that employers can require employees to take annual leave while on furlough, "If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday."

Schools and colleges should ensure that support staff are given the opportunity to take sufficient, regular breaks from work. ASCL would advise that where employers wish employees to take leave they should carefully consider the amount given the limitations there are likely to be on them to be able to properly rest, relax and enjoy their leisure time during the current restrictions.

It would not be appropriate for employers to insist that staff take prolonged holidays to use up their leave whilst the current restrictions are in place, as this could lead to some staff experiencing social isolation and impact negatively on their mental wellbeing.   
 

No, the scheme states that to be eligible for the subsidy, when on furlough, an employee can not undertake any work for or on behalf of the organisation. This includes providing services or generating revenue.
 

The scheme closed to new entrants from 30 June. From this point onwards, employers are only able to furlough employees that they have previously furloughed for a full three-week period prior to 30 June.

This meant that the final date by which an employer could furlough an employee for the first time was 10 June, in order for the three week furlough period to be completed by 30 June. 

Since 1 July, employers can bring back to work employees that have previously been furloughed for any amount of time and any shift pattern, while still being able to claim CJRS grant for their normal hours not worked. When claiming the CJRS grant for furloughed hours, employers will need to report and claim for a minimum period of a week.

The Government has published further guidance on flexible furloughing and how employers should calculate claims. Find out more information on changes to the Coronavirus Job Retention Scheme.

The scheme will close on 31 October. Employers claiming from the scheme should check the deadline by which final claims need to be submitted.
 

As part of the Chancellor’s ‘Plan for Jobs’, the Government is introducing the Job Retention Bonus scheme. The Job Retention Bonus is a one-off payment to employers of £1,000 for every employee who they previously claimed for under the scheme, and who remains continuously employed through to 31 January 2021.

Eligible employees must earn at least £520 a month on average between the 1 November 2020 and 31 January 2021.

Employers will be able to claim the Job Retention Bonus from GOV.UK from February 2021.  Further information about this process will be published in guidance by the end of September 2020.
 

The DfE exam support service
Guidance to support schools and colleges with their responsibilities in the autumn exam season, includes confirmation that funding will be made available to guard against any financial barriers.  The expectation will be that any savings made as a result of the cancellation of the summer series will be used to offset costs incurred in the autumn, however the support package is intended to ensure that centres do not suffer a net loss. We expect the service to launch at the beginning of the autumn term, along with guidance on how to make a claim.

The DfE Exam Support Service covers fees charged by awarding organisations, sites and invigilation, however the service will not cover English language and maths GCSE exams taken by students who did not achieve a grade 4 or higher in these subjects. This is because these exams take place in November in a normal year and DfE anticipates that schools and colleges will have planned and budgeted for them. The full DfE guidance published on 12 August (updated 27 August) is available here.

The service will be open to all types of schools and colleges
•    State-funded schools
•    Independent schools
•    FE, sixth form and tertiary colleges
•    Independent training providers
•    Private exam centres

We do not expect that access to the support service will be limited by the financial reserves position of the school or college. We do expect that evidence will need to be provided to substantiate claims, for example, refunds/credit notes provided by awarding bodies.
 

Bursaries, scholarships, school direct and apprenticeship payments are confirmed to continue as normal. For schools recruiting school direct trainees, interviews for next year’s students can be carried out online, and supporting documentation viewed online. Deadlines have been extended. 

Updated guidance is available here
 

No.  The DfE have issued Guidance on induction for newly qualified teachers (NQTs) and absences as a result of COVID-19.  Subject to parliamentary agreement, this states that NQTs absent for reasons related to the current COVID-19 public health emergency will not have their induction period automatically extended.

This guidance was updated in August 2020 when the government, subject to parliamentary agreement, extended the period during which NQT absences related to coronavirus (Covid-19) will not contribute towards the absence limit that would extend statutory induction. This provision was originally to 1 September 2020, but has now been extended to 1 September 2021.

Current arrangements state that ad-hoc absences totalling 30 days or more automatically extends induction by the aggregate number of days absent. However, the DfE intend to amend the regulations to ensure that any absence related to COVID-19, including school closures, sickness or self-isolation, will not count towards this limit. This means that NQTs who are currently undertaking statutory induction can complete their induction this academic year as expected, provided they meet the Teachers’ Standards.

Headteachers and appropriate bodies should continue to judge whether a NQT has met the Teachers’ Standards upon completion of the induction period, which for most, will be the end of the academic year.
If there are concerns that a NQT has not achieved the standards by the end of their induction period, we would strongly encourage headteachers and appropriate bodies to exercise their discretion to recommend an extension, allowing the NQT further time and opportunity to demonstrate their ability to meet the standards.
More detailed advice is available here.

* produced jointly with NAHT

 

Placements for trainee teachers have been formally suspended. Providers (universities and SCITTs) will support trainee teachers to complete their training through assignments. Where trainee teachers are on a positive trajectory at the end of the programme, their provider will be able to recommend them for QTS. 

There is a similar expectation for provider judgements to be made for NQTs. 

Updated government guidance states that courses for trainees identified by their ITT provider as not meeting or not on a trajectory to meet the teachers’ standards should be extended beyond their original planned end date. This is to allow these trainees a reasonable opportunity to demonstrate in the autumn term 2020 that they meet the teachers’ standards.

It is the responsibility of ITT providers to determine the nature, content and duration of training required by trainees whose courses extend into the autumn term, in line with current arrangements.

Funding is available for trainees and providers where courses extend owing to coronavirus (COVID-19). Full details are in Funding: ITT coronavirus (COVID-19) course extensions 2019 to 2020.

Further information on trainee teachers can be found on the UCET website

For further information on NQTs contact your appropriate body for induction. 

 

Employers are not permitted to make payment in lieu of any unused statutory annual leave unless the worker is leaving employment. If an employer has agreed additional contractual annual leave above the statutory minimum, this would still be covered by any separately agreed contractual arrangements.

The DfE’s view is that appraisals and performance management for support staff should be carried out in accordance with the employee’s contract of employment. The department does not specify pay or terms and conditions of employment for support staff.

Nevertheless, they have also said that they expect schools to take sensible and pragmatic steps to adapt their performance management arrangements to take account of the current circumstances. This may mean basing performance on a more limited time period – that is while ‘normal’ circumstances prevailed. 

However, employers should be cautious that such an approach does not disadvantage staff who may not have had the opportunity to fully demonstrate their ability to meet their objectives or those who were working towards particular targets which they now no longer have the opportunity to meet. 

Employers may therefore wish to consider temporarily postponing or delaying the performance management processes. Again, however, we would caution employers that they should ensure that any decision does not disadvantage staff, and that trade unions are consulted as appropriate.

Support staff employed on NJC terms and conditions are not subject to performance-related pay, this also applies to any staff who enjoy TUPE protections. 

For other support staff who may be subject to performance-related pay, we would encourage employers to follow the same advice given for teachers.
 

The DfE has said "maintained schools must continue to adhere to the School Teachers Pay and Conditions Document (STPCD), which includes the requirement to ensure that all pay progression for teachers is linked to performance management. However, we would expect schools to use their discretion and take pragmatic steps, to adapt performance management and appraisal arrangements to take account of the current circumstances."

Where employers go ahead with performance related pay progression for the academic year 2019/2020, they should follow the DfE guidance which also states "Schools must ensure that teachers are not penalised during the appraisal process or in respect of any subsequent pay progression decisions as a result of partial school closures, where this has impacted on the ability of the teacher to meet fully their objectives."

ASCL, together with NAHT and NGA, believe schools should consider favourably those teachers and leaders eligible for pay progression for the academic year 2019/20 so that those who have been unable to successfully complete their performance management/appraisal objectives do not suffer a detriment.

Any employers who are considering not awarding pay progression due to concerns over performance would need to demonstrate that BEFORE the partial closures:

  • they had raised these concerns with the member of staff 
  • what opportunity the employee had been given to improve 
  • what support the employer had put in place to assist this

It would not be appropriate for them to expect staff to gather further evidence over the Summer.  Also, due to the 2020 exam situation, any objectives related to student outcomes should be disregarded.

We would expect employers to be consistent in their approach to performance management and pay progression and where they choose to award automatic pay progression, this should not just be for one group of staff ie, if they were awarding this to MPS and UPS teachers, we would expect the same for those on the leadership spine.

Headteachers will need to discuss how their own performance management arrangements will need to be adapted with their Governing/Trust Board, as this will be carried out by a Governor/Trustee Committee.

 

The government has confirmed that the International Teacher Recruitment Programme will continue to recruit international teachers for the 2020 to 2021 academic year. This programme supports state-funded secondary schools in England to recruit maths, physics, computer science, general science and modern foreign languages teachers from a number of other countries.  The focus will be on recruiting teachers to start in January 2021 rather than September 2020, in case travel restrictions and the closure of visa application centres continue. More information is available here
 

ASCL, LGA, NAHT, NASUWT, NEU and NGA have agreed the following joint statement on this issue: 

"The Easter period and thereafter is typically a very busy time for school recruitment. In light of the current school closures, there may well be disruption to the recruitment and resignation processes for those schools governed by or using the Burgundy Book provisions; in particular the requirement for teachers to provide written notice by 31 May of their intention to leave a school’s employment by 31 August of any year. (For head teachers the deadline to provide written notice is by 30 April of their intention to leave a school’s employment by 31 August of any year). 

The extent of the impact will vary from school to school and therefore we do not believe that there should be any changes to the notice periods. In this difficult period, there will need to be an element of flexibility all round. We would encourage schools to have a flexible response, if it appears that teachers and leaders are impacted by the Covid-19 pandemic and submit a resignation outside of the normal timeframe. For those employees that are looking to resign and/or retire themselves, we would encourage you to provide your governing boards and/or senior leadership team with as much notice as possible and stay within the standard notice period dates as far as is possible, as you would do in normal circumstances. It may also be helpful to direct boards to NGA's current guidance on managing the head teacher recruitment process in the current situation. 

In terms of recruitment, schools may wish to consider managing applications and interviews virtually while the advice from the government is to remain at home or choose to delay advertising vacancies until later in the year. Schools should not be conducting face to face interviews or encouraging applicants to visit schools during this period. 

We are raising the potential impact of any disruption with the DfE, asking for further guidance and support for schools to ensure that there is not a deficit of teachers and/or leaders, who have been unable to move around the system, ready for the Autumn term."
 

The government guidance on full opening in the autumn term, updated 27 July, states that school leaders should explain to staff the measures the school is putting in place to reduce risks. The government anticipates that adherence to the measures in this guidance will provide the necessary reassurance for staff to return to schools, including those who are extremely clinically vulnerable and clinically vulnerable (they categorise pregnant women as clinically vulnerable). 

From 1 August, the advice for those who are extremely clinically vulnerable and for those who are clinically vulnerable (including pregnant women) will be the same.  However, employers should note that the advice relating to the period after this date states that people in these categories can go back to work as long as their workplace is Covid-19 secure, but that they should carry on working from home wherever possible. 

Employers should conduct a risk assessment for pregnant women in line with the Management of Health and Safety at Work Regulations 1999 (MHSW).

The Royal College of Obstetrics and Gynaecology (RCOG) has published occupational health advice for employers and pregnant women. This document includes advice for women from 28 weeks gestation or with underlying health conditions who may be at greater risk. The government advises employers and pregnant women to follow this advice and to continue to monitor for future updates to it.  Although the national policy around shielding has shifted, the RCOG say that their advice still stands.

Employers will need to consider these requirements when discussing arrangements for a return to the workplace with pregnant staff. They will need to take appropriate advice and look at how pregnant staff can work safely, particularly with younger children.  

HSE advice on working safely during the COVID-19 outbreak also covers pregnant workers as follows:

There is a long-standing requirement for employers to put in place measures to ensure workplace safety where a significant health and safety risk is identified for a new or expectant mother.

Additionally, a proportion of pregnant workers will be at greater risk of severe illness from coronavirus. They should have received a shielding letter from the NHS advising them:
•    to stay at home where possible
•    that they are not expected to be in a workplace
Employers will need to take this into account in their risk assessment.

If you cannot put the necessary control measures in place, such as adjustments to the job or working from home, you should suspend the pregnant worker on paid leave. This is in line with regulation 16(3) of the Management of Health and Safety at Work Regulations 1999.


It is ASCL’s view that these staff should only be asked to return to the workplace where both employer and employee are satisfied that the risk assessment indicates it is safe to do so.

 

From 1 August, the advice for those who are extremely clinically vulnerable and for those who are clinically vulnerable (including pregnant women) became the same.  The government advised that people in these categories no longer need to shield.  However, employers should note that the advice relating to the period after this date states that people in these categories can go back to work as long as their workplace is Covid-19 secure, but that they should carry on working from home wherever possible.

The government guidance on full opening in the autumn term, updated 28 August, states that school leaders should explain to staff the measures the school is putting in place to reduce risks. The government anticipates that adherence to the measures in this guidance will provide the necessary reassurance for staff to return to schools, including those who are extremely clinically vulnerable and clinically vulnerable. 

Advice from the National Employers for local government services states that where staff were previously in shielded categories, it should be made clear what steps are being taken to protect them, and gives an example of reassigning them to tasks where stringent social distancing guidelines can be followed if that cannot be assured in their normal role.  They also say that this applies to staff who live with someone in the shielded group.

Employers may wish to consider completing an individual risk assessment for these staff.

It is ASCL’s view that these staff should only be asked to return to the workplace where both employer and employee are satisfied that the risk assessment indicates it is safe to do so.

 

No. The government guidelines over self-isolation are very clear. The national agreements for teachers and support staff also state that any absences relating to this are not reckonable against the employee’s entitlement to sick leave. As such, it would be inappropriate to deal with them through the normal absence management procedures and impose any sanctions.

* produced jointly with NAHT
 

Employers are not permitted to make payment in lieu of any unused statutory annual leave unless the worker is leaving employment. If an employer has agreed additional contractual annual leave above the statutory minimum, this would still be covered by any separately agreed contractual arrangements.
 

Quarantine should be treated in the same way as self-isolation. If the member of staff has no symptoms or is well enough to work, they should be allowed to work from home for the isolation period and in which case they would be entitled to normal pay.  Where their role cannot be done from home, it is ASCL’s view that they should still be paid their normal pay.

Employers should have consulted on how they will manage the introduction of quarantining, and the possible short notice closure of travel corridors, with their staff. This could have been done by requesting that all staff declare what their holiday plans were so that they could assess how many staff may be self-quarantining at the start of September (and possibly the autumn half term) and plan accordingly.  

Alternatively, they could have sought to amend their policies so that staff are not able to book any holidays during school closure periods that may incur a period of quarantine during term time.  This type of change to policy would need to go through the relevant consultation processes to do this.

Employers need to bear in mind that the latter would mean effectively restricting the holiday period from six to four weeks for staff who wish to travel abroad. This would also affect staff who may wish to visit family and friends who they have been unable to see for an extended period of time due to the COVID-19 pandemic.

The updated government guidance published 27 July acknowledges that there is a risk that where staff travel abroad, their return travel arrangements could be disrupted due to factors arising beyond their control in relation to coronavirus (COVID-19), such as the potential for reinstatement of lockdown measures in the place they are visiting.

The guidance says that where it is not possible to avoid a member of staff having to quarantine during term time, school leaders should consider if it is possible to temporarily amend working arrangements to enable them to work from home.
 

The government guidance on this has been updated and says that people who live with those who are clinically extremely vulnerable or clinically vulnerable can attend the workplace.

However, advice from the National Employers for local government services states that where staff were previously in shielded categories, it should be made clear what steps are being taken to protect them, and gives an example of reassigning them to tasks where stringent social distancing guidelines can be followed if that cannot be assured in their normal role.  They also say that this applies to staff who live with someone in the shielded group.

It is ASCL’s view that these staff should only be asked to return to the workplace where both employer and employee are satisfied that the risk assessment indicates it is safe to do so.
 

Employers should also be aware that if a worker becomes sick while taking annual leave, then any remaining booked annual leave would be reclassified as sick leave and the worker would be entitled to carry any unused days into the next leave year, in addition to the 20 days now allowed. 
 



 

Yes, it applies to any staff who have an annual leave entitlement which they book rather than being employed on a term-time only contract. The new Working Time (Coronavirus) (Amendment) Regulations 2020 will apply for workers who have not taken all of their statutory annual leave entitlement due to COVID-19. They will now be able to carry four weeks (20 days) of leave, in addition to any existing contractual entitlements to carry leave forward, over into the next two leave years, easing the requirements on business to ensure that workers take the statutory amount of annual leave in any one year.
 
Schools and colleges should ensure that support staff are given the opportunity to take sufficient, regular breaks from work. The guiding principle of the four weeks of annual leave is to protect health, safety and wellbeing through adequate rest so employers should continue to bear this in mind.
 

If the employee does not wish to attend the workplace and is not in one of the groups PHE says should self-isolate, the employer must listen to the concerns of the employee. 

On 2 June, Public Health England published a review of the disparities in the risk and outcomes from coronavirus, including disparities associated with age, ethnicity, gender and geography. This review will inform the Government’s approach. When considering their preparations for wider opening, schools should be especially sensitive to the needs and worries of individuals who may be more severely affected by coronavirus. 

Employers should especially consider the needs of any employees who may have particular cause for concern about the risk of infection, such as pregnant women, those with compromised immunity and employees in the groups identified by PHE and the WHO as at higher risk of developing severe COVID-19. 
If an employee has a disability within the meaning of the Equality Act 2010 which results in a compromised immune system or a higher risk of developing severe COVID-19, the employer may have a legal duty under that Act to make reasonable adjustments to the employee’s working arrangements.

The employer should carefully consider concerns expressed by staff in the light of its obligations to take reasonable steps to provide a safe working environment.   ASCL would advise employers to ensure that they address these areas in their risk assessments.

Whilst staff not in the groups identified by the PHE of the WHO should be able to come into school, it is natural that some employees will be worried about doing so even if the risks for them are very low. 

In agreeing the best approaches for their schools, headteachers and school leaders should work closely with employees and unions, where appropriate. School leaders will be in the best position, knowing their staff and school circumstances, to decide how to proceed in individual cases. 

We are working in an unprecedented context, and more reassurance and discussion than usual may be required. It is always best, if at all possible, to work out a sensible way forward in individual cases that acknowledges any specific anxieties but which also enables the school’s responsibilities to be effectively discharged. If you need support in finding a solution, speak to your local authority or trust.

Acas has recommended that, where there are genuine concerns, the employer must try to resoIve these to protect the health and safety of their staff by, for example, offering flexible working. Alternatives which might be agreed are taking annual leave or taking a period of unpaid leave.

Where an employee says they are unwilling to attend work because one or more work colleagues or pupils are not following hygiene rules and they fear they are placed at increased risk, the employer will need to consider the employee’s concerns very carefully before deciding how to respond.

In addition, in some extreme cases the anxiety caused by the outbreak of COVID-19 will itself render the employee unfit to work and entitled to sick pay.
 

Arrangements for teachers and school staff sick pay are agreed between employers and relevant unions. The DfE have confirmed that schools will receive the same level of funding regardless of any period of partial or complete closure, and so would expect pay to continue as normal.  The government has also confirmed that Statutory Sick Pay is payable for periods of self-isolation. We would expect employers to pay contractual sick pay where this is in place.

If the member of staff has no symptoms or is well enough to work, they should be allowed to work from home for the isolation period and in which case they would be entitled to normal pay.  Where their role cannot be done from home, they should still be paid their normal pay.
 

Yes.  The STPCD has not been disapplied and so teachers have a right, through their terms and conditions, to their PPA time. Headteachers and school leaders will want to take this into consideration when assessing staff availability and risk assessments in advance of wider opening.
 

Yes.  The STPCD has not been disapplied and so teachers have a right, through their terms and conditions, to be required to provide cover ‘only rarely, and only in circumstances that are not foreseeable’. 

If bubbles or year groups are required to self-isolate, this will not result in teachers having ‘gained time’ as they will still be required to provide education for their affected classes.  

Headteachers and school leaders will want to take this into consideration when assessing staff availability and risk assessments.
 

Employers should have in place clear guidance and protocols for keeping in contacting with pupils and parents during periods of local lockdown or self-isolation, including vulnerable children/young people and their families.
 
ASCL advises that schools and colleges adopt the following as part of their procedure:

  • Contact and conversations should be logged (including unsuccessful attempts) and undertaken with the full knowledge of the DSL.
  • The school/college/key contact sets out clear expectations for families – a regular day and a time when calls will be made. 
  • Parents and pupils are aware who they should contact in a crisis and the remit of their key contact.
  • Give staff a script for common questions or concerns (these will change as time goes on and should be regularly reviewed with staff).
The procedure will also need to make clear WHO is responsible for keeping in contact with pupils and parents.
 
Members of staff who know the young person well may be best placed to keep in regular touch (key worker, form tutor, LSA), rather than a member of the senior leadership team or DSL.
 
Consideration needs to be given as to how staff will be contacting pupils and parents in order to both ensure appropriate safeguarding measures are in place and to comply with relevant GDPR legislation.
 
ASCL’s advice is that staff should not contact children or their families using their own phone.
 
Ideally, staff should make contact via the school or college’s online systems.  Where this is not possible, for example, during any periods of partial school closure through local lockdowns, ASCL would advise the purchase of cheap pay-as-you-go mobiles on behalf of the school or college wherever possible. Where staff have to make the purchase themselves, they should be reimbursed as soon as possible. 

In order to support safeguarding, calls should be recorded, as should one-to-one video calls.
 

All staff working from home are being paid to work their contracted hours. The work they are doing at the moment is likely to include providing lesson resources for pupils either online or for those attending school or college and, where teachers have sufficient capacity, appropriate marking and feedback. School and college leaders should be mindful that in the current transition period this may be taking up a significant proportion, if not all, of a teacher’s contracted time (and more).

They should also be mindful that teachers who are also trying to look after their own children at home may not be as productive as usual. School and college leaders should therefore avoid putting onerous expectations on teachers in terms of marking or planning burden. It would be entirely counterproductive if teachers with children felt that they only way they could manage their workloads during this period would be to send their own children to school or college.  

It is not possible to mandate what proportionate marking and planning should look like, but the burden could be reduced by thinking carefully about the type of task set, and the use of self-marking online software, etc. 

The ASCL specialist team has produced some guidance for leaders and teachers on effective strategies for remote teaching and learning. 
 

The DfE fully recognise the pressure and uncertainty that schools and academy trusts are facing throughout the coronavirus outbreak and appreciate the need for pragmatism and sensitivity in the context of planned re-structures or redundancy. In the case of local authority maintained schools considering staff re-structuring and redundancy, it will be for local authorities to consider how best to support the governing bodies of the schools that they maintain at this time.

In the case of academies, academy trusts should assess their plans on a case-by-case basis. If academy trusts find themselves facing financial challenges as a result of these decisions, they can contact the DfE’s dedicated helpline at: DfE.CoronavirusHelpline@education.gov.uk.

In taking decisions about restructuring and redundancies, governing bodies of maintained schools and academy trusts will need to ensure they conduct processes in accordance with legal requirements, including requirements around consultation.

Given the unique current situation, ASCL believes that employers should consider carefully their ability to run meaningful consultation processes at the moment, particularly with regard to redundancy and restructuring. We would want to be assured that members were able to be properly represented during a time when trade unions, in line with government advice, are only undertaking essential travel. In addition, employers would need to ensure that members who are working from home are able to engage fully in the process. Where we have concerns over the viability of this we will be advising members accordingly.
 
On balance, we believe it would be very difficult, in the present circumstances, for an employer to be able to follow due process. We are concerned, if they were to attempt to do so, about the impact on the wellbeing of those both directly and indirectly involved.
 

The Department have said that they are considering each case on its specific merits and taking a pragmatic and sensitive approach. However, they have confirmed that there will be no new academy orders for schools judged to be inadequate by Ofsted during this time, as routine inspections have been suspended.

 

No.  The Department have said that they have already supported several schools to become academies on
1 April and 1 May.  For future months they have said that they will support schools to become academies where this will provide more benefits than downsides – such as certainty and clarity to all school staff about their employment status.

They will also continue to make decisions about changes to academy trusts and academies during this period, where these decisions will better serve the interests of the school system over the longer term and where they will provide greater certainty and clarity for schools, parents and pupils alike.

ASCL will be looking to employers to demonstrate that they above criteria is applicable and for assurances that the process can be carried out appropriately under the current circumstances.
 
On balance, we believe it would be very difficult, in the present circumstances, for an employer to be able to follow due process. We are concerned, if they were to attempt to do so, about the impact on the wellbeing of those both directly and indirectly involved.

The DfE have said that it will be for individual employers to decide how best to carry out TUPE (Transfer of Undertakings Protection of Employment) consultation during this period. They will need to consider how they will conduct these in accordance with legal requirements and proper consultation processes.

Given the unique current situation, ASCL believes that employers should consider carefully their ability to run meaningful consultation processes at the moment. We would want to be assured that members were able to be properly represented during a time when trade unions, in line with government advice, are only undertaking essential travel. In addition, employers would need to ensure that members who are working from home are able to engage fully in the process. Where we have concerns over the viability of this we will be advising members accordingly.

DfE guidance states that schools and colleges must continue to follow their legal duty to refer to the Disclosure and Barring Service (DBS) anyone who has harmed or poses a risk of harm to a child or vulnerable adult. Full details can be found at paragraph 163 of Keeping Children Safe in Education (KCSIE).
 
The guidance also states that schools and colleges should continue to consider and make referrals to the Teaching Regulation Agency (TRA) as per paragraph 166 of KCSIE and the TRA’s ‘Teacher misconduct advice for making a referral’. During the coronavirus period all referrals should be made by emailing Misconduct.Teacher@education.gov.uk.

Given the unique current situation, ASCL believes that employers should consider carefully their ability to deal with grievances, capability or disciplinary matters. We would want to be assured that members were able to be properly represented during a time when trade unions, in line with government advice, are only undertaking essential travel. In addition, employers would need to ensure that members who are working from home are able to engage fully in the process. Where we have concerns over the viability of this we will be advising members accordingly.

Any employers that do choose to proceed with any of these matters will need to ensure that they are carried out in line with all legal requirements.  Acas have produced some guidance which reminds employers that the law and Acas Code of Practice on disciplinary and grievance procedures still apply during the coronavirus (COVID-19) pandemic.

The guidance advises that employers need to decide if the process can still be carried out fairly and reasonably if some or all of the people involved in the procedure are working from home.

If the process does go ahead employers must follow the Acas Code of Practice on disciplinary or grievance procedures.  If a disciplinary or grievance case reaches an employment tribunal, judges will look at whether the employer has followed the Acas Code of Practice in a fair and reasonable way.

On balance, we believe it would be very difficult, in the present circumstances, for an employer to be able to follow due process. We are concerned, if they were to attempt to do so, about the impact on the wellbeing of those both directly and indirectly involved.
 

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