Charlotte Antoniou
Posted on 17 Apr 2020

Coronavirus (COVID-19) – Education Q&A Part 2

Can State schools place staff on furlough leave, under the Coronavirus Job Retention Scheme (CJRS)?

No, not normally. Publicly-funded schools will keep receiving their budgets for the coming year as usual, regardless of any periods of partial or complete closure. This will ensure that they are able to continue to pay for staff and meet their other regular financial commitments. The Government expects schools to pay staff they employ directly in the usual fashion, and correspondingly not to furlough them.

Should schools continue to pay for supply teachers and other 'contingent workers'?

The Government expects schools to draw first on their existing staff to maintain necessary provision, but recognises that schools may continue to need supply teachers and other temporary workers throughout this period. It encourages schools and employment businesses (agencies) to liaise regularly on any potential need to ensure that workers are available where required. The Government does not anticipate schools will need extra funding specifically to manage the cost of hiring additional temporary workers, as they expect most schools will draw on their existing staff for ongoing provision. Schools should have regard to the guidance for public bodies on payment of their suppliers, to ensure service continuity during and after the current Coronavirus (COVID-19) pandemic.

Who pays any supply staff who are not needed during closure, or for a period of limited school opening?

If employed by an agency, the agency is responsible for paying their staff in line with the Government's prescribed scheme for what are known as 'contingent workers'. The Government guidance makes it clear that this scheme is designed to provide the same levels of support to 'Contingent Workers', as to other types of employees, and also to support the supply chain through this period. Suppliers (i.e. here the recruitment agency) should make the arrangements for payment to the Contingent Workers so that they receive either their usual salary or 80% of their pay (up to a maximum of £2500 per month) in the same way that they usually would usually pay them if they are unable to work due to Coronavirus (COVID-19) (for example due to sickness, self-isolation, or the temporary closure of offices).

How does the agency recover these payments?

Having paid the Contingent Workers, the agency would then invoice this to the school in the normal way. As a result, since the school is still receiving Government funding it should be using it to pay the agency for the provision of the supply staff, rather than making a claim to HMRC for pay recoupment under the CJRS.

Can agencies charge their extra costs for administering the scheme to the school?

A current issue for schools is whether the agency can charge them for the agency's extra admin costs, not covered by the existing contractual terms. Typically, this comes down to a commercial negotiation, depending on the parties' respective negotiating positon. Nevertheless, Government guidance suggests that it would be acceptable for an agency to continue to charge the agency margin, which is allowed under the guidance, but that if this is usually a fixed fee it would need to be reduced to 80% where supply staff are being paid at 80% of their pay rate as outlined above.

Is Coronavirus (COVID-19) going to affect exclusions?

After receiving Royal Assent on 25 March 2020, the Coronavirus Act 2020 has amended existing legislation allowing the use of video and / or audio technology for hearings away from the physical courtroom. This has allowed a number of hearings to take place entirely online. Subject to any future guidance published by the Government, there is nothing preventing governing boards and independent review panels from considering exclusions. Although many schools have closed following the COVID-19 outbreak, vulnerable children and children of key workers may still need to be in school and, if they are subject to an exclusion, this will need to be looked into.

Legally speaking, the School Exclusions Code does not envisage what should be done in the case of a pandemic. Given COVID-19 and the current social distancing measures in place, it would be unreasonable to hold a governor or independent review panel in person. Nevertheless, with the wide range of technology available, review meetings are being held remotely.

We would advise that, where possible, such reviews be held sooner rather than later, particularly if a child was excluded prior to the lockdown. Schools will still be obliged to comply with the required timescales for review and, by not holding reviews, there is a potential breach of the Code. Meetings should therefore be held using appropriate technology if possible. Collaboration will be essential here. For instance, the Chair of Governors should write to the excluded child's parents setting out the school's position on whether or not they are going to go ahead with the review meeting, and inviting the parents to make representations if they disagree with the school's choice.

TUPE and Coronavirus (COVID-19)

There are no legal provisions preventing TUPE consultations from going ahead, even if some unions may not be happy with this. The outgoing employer simply needs to ensure that consultation is meaningful and effective and can do this by offering videoconferences with affected staff. To ensure fairness and transparency in the process, employers should take note of all questions asked and the answers given, and then circulate these in one document to all affected employees.

Although virtual consultations may take slightly longer when conducted remotely, no minimum period is set for TUPE consultation periods. The only requirement is for the relevant information to be provided to the employee representatives (or employees where there are no such representatives) "long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives".

To ensure the smooth remote conduct of these consultations, a number of points should be considered by the employer, such as which videoconferencing platform to use. For some practical tips on what employers should be considering when holding virtual consultations, please read our recently published article on virtual meetings.

If you would like to discuss any of the issues raised in this article, or have other concerns about the impact of Coronavirus, please contact: Hollie Suddards,  Charlotte Antoniou or Tom Briant-Evans in Michelmores' Education team.

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This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.