Bethan Jones
Posted on 7 Apr 2020

Coronavirus (COVID 19) - Education Q&A

Who can send their children to school during the Coronavirus pandemic?

Following the closure of most UK schools on Friday 20 March 2020, the children of key workers and vulnerable children will still be able to attend school where they cannot be safely cared for at home. A broad list has been released, which has left some people unsure as to whether they qualify as a key worker. Schools and Trusts are dealing with an unprecedented situation and should follow the guidance as well as they can. If a school reasonably believes that a child can be cared for at home, it should not be afraid to tell parents that the school is only being kept open for a limited number of children who satisfy certain criteria. The Government's advice is very clear that, wherever possible, children should be at home. More information can be found here.

Our advice is to apply a consistent and fair approach when determining who is/isn't a key worker and whether or not the children of those workers can be kept safe at home. Where qualifying parents do wish to send their children to school, they should be informed that, although Government guidance on social distancing will be adhered to where possible, ensuring that children are kept 2 metres apart will not always be possible in an educational setting.

What will happen to holiday, breakfast and after-school clubs?

Schools have a duty to provide education during school hours, but are under no obligation to keep extra-curricular clubs such as holiday, breakfast or after-school clubs open. The Government has not yet released any guidance as to whether schools will remain open during the Easter break to care for vulnerable children and those of key workers. Schools may decide to keep such clubs open; however, they must ensure that, in doing so, they are able to keep the children safe. For instance, if a school has any early years aged children attending the school/clubs, there must be a paediatric trained first aider available throughout the day. It is also important that the school/setting follows normal rules around ratios to staff and children.

Agreeing to take 'host children'

A school can temporarily take on additional children who normally receive their education from another institution, but only if it has the capacity to keep all of the children safe. If a school agrees to take children who are not on its roll ('host children'), its duty of care will then extend to those children. A school is deemed to be 'in loco parentis' of all children in its care during the school day, meaning that it is responsible for a child while the child's parents are absent.  

Does a school have to honour performance related contracts?

The Government has released a Procurement Policy Note explaining the need for both maintained schools and academies to pay their suppliers to ensure service continuity during and after the current Coronavirus (COVID-19) pandemic. In order to maintain cash flow in the supply chain and protect jobs, it is important for these schools to:

  • inform suppliers that they will continue to be paid as normal (even if service delivery is disrupted or temporarily suspended) until at least 30 June 2020;
  • take appropriate payment measures to support supplier cash flow;
  • pay the supplier on the basis of previous invoices. For example: if the contract involves payment by results, it should be the average monthly payment over the previous three months; and
  • ensure immediate payment on receipt of any invoices submitted by suppliers.

Is the Department for Education ('DfE') continuing with academy conversions?

In short, yes. Although the DfE's primary focus is on school closures and other Coronavirus related issues, it has yet to receive any Government guidance/instruction to halt work on conversions. We remain in regular contact with the Department for Education and will update our clients in the event we are informed of any changes. For now, the DfE and Michelmores' Education Team are proceeding as usual with the deadlines that we have in place.

Can a school reveal the identities of staff or pupils who have tested positive for Coronavirus (COVID-19), or would this be problematic in terms of the GDPR?

Schools should liaise with Public Health England in the first instance and take their advice as to whether the names of those with Coronavirus (COVID-19) can be released. Public Health England has also published guidance for employers and businesses and for educational settings which may be helpful.

Data concerning health is a special category of personal data, which schools are prohibited from processing unless they can rely on one of the exemptions under Article 9 (GDPR).

In the event that Public Health England is unable to provide the school with much clarity, our immediate view is that you could release the individuals' names with their consent or, if the individual is incapable of giving consent, by relying on the vital interests exemption. The ICO has published guidance on special categories of personal data, which can be found here.

It will be important for schools to follow any Government guidance on the Coronavirus situation. We would suggest providing regular updates to parents on any developments, but the school should ensure that any information shared does not compromise the identity of any other individuals. For instance, when sending an email to a group of individuals, their email addresses should be placed in the 'Bcc' field so that they cannot be seen by others.

How long can a school retain personal data that it has collected, retained and shared for public health purposes in light of the Coronavirus?

When it comes to determining retention periods, the principle is that data should not be held for longer than is necessary and a policy which sets standard retention periods (wherever possible) is best practice. There is a need to periodically review the data held and to erase or anonymise where it is no longer needed.

How can governors take decisions virtually?

Often, a board resolution in writing has to be signed unanimously by all governors, meaning that a unanimous decision made by email will be valid. Otherwise, the general rule is that decisions have to be voted on in real-time, meaning in person, by telephone or videoconference if this is allowed by the school's articles. Please see our article on: Coronavirus – virtual meetings, an option for schools.

Does the school have to pay staff if it is shut or where the employee is not required to cater for vulnerable children and children of key workers?

On 20 March 2020, the Coronavirus Job Retention Scheme was introduced by the Government to help organisations, including schools, protect jobs and avoid the need for immediate redundancies. 80% of an employee's wages will be paid by the Government (up to a maximum of £2,500 per month) if such employee remains on the school's payroll but is temporarily not working due to the Coronavirus outbreak.

Rachael Lloyd, Senior Associate in Michelmores' Employment team, provides a more detailed explanation of this scheme here.

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 or Bethan Jones 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.