Helen Dyke

As we know the government announced that a number of restrictions are being lifted today (Monday 17 May 2021), in line with 'step three' of its roadmap out of lockdown. In the context of education, it said that school pupils and college students won't have to wear masks in the classroom or communal areas, and has published new guidance on face coverings in education. It also recommends that staff should ditch their masks when teaching in classrooms but continue to wear them outside of classrooms where social distancing isn't possible. 

FE colleges have 'discretion' to recommend the use of face coverings in the context of teaching vocational subjects and 'must'  enforce their use when students are learning in workplace settings:

'FE providers may consider recommending the use of face coverings when teaching settings are more reflective of a workplace environment, such as a training kitchen. If you ... operate commercial training environments, such as hairdressing, barbering and beauty salons, sports and fitness facilities or restaurants, they must comply with the relevant sector guidance in working safely during COVID-19 and the current restriction guidance.'

Although nationally, the infection rates have substantially dropped since the peak in the winter, there's widespread concern that lifting the restrictions on masks is premature. Minutes of SAGE's meeting which took place on 5 May indicate that the Indian variant (B.1.617.2) has increased in the UK and is more transmissible than previous variants. And, we don't yet know if it is more resistant to the vaccines than other variants. 

In addition, recent modelling prepared by the government’s Scientific Pandemic Influenza Group on Modelling, examined the impact on Covid rates when schools and colleges reopened in March 2021. It concluded that because it only had three weeks of data (up to the Easter holidays) it was difficult to clearly quantify the effect this had and to determine whether infections then spread to the community. But we do know that lateral flow test positivity increased in schools during this period. There was also a modest increase in positivity in school aged children in ONS’s Community Infection Survey. The report concluded that: 

'This highlights the importance of maintaining current mitigation measures in schools, such as testing and mask wearing, in the coming months.'

The government appear to have ignored that advice.

We're not yet aware of any unions who are publically advising staff to refuse to come into work because their workplace poses a serious and imminent threat to their own health or that of their families. But, we do know that some staff have already approached their leadership teams because they are worried about being around students (and potentially other members of staff) who won't be wearing masks, particularly if they haven't received their first vaccination (which has only recently been offered to those who are in their forties). It's therefore possible that you'll start to receive 'section 44 letters' - particularly in the context of local outbreaks. You may find our previous advice useful to help you respond to these. 

So what options do schools and colleges have?

It's your responsibility to carry out risk assessments and to ensure that you minimise risk to its lowest reasonable level. If your assessment concludes that staff and/or children/students should wear face coverings, then you can enforce your policy - subject to the usual rules on allowing those who don't have to wear masks to be exempted. We recognise that it will be more difficult to enforce mask wearing amongst students. Parents and the students themselves may challenge your policy on the basis that it goes against government guidance. In addition, the DfE has made it clear that you can't refuse to educate someone just because they are not wearing a face covering. Clear communication is essential as well as considering individual circumstances and making exceptions where necessary and reasonable. 

Even if your risk assessment doesn't require staff (or students) to wear face coverings, it is sensible to give them the option to decide for themselves and support their choices.

Helen Dyke is a Senior Associate in the Employment Team at Irwin Mitchell 

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