Back to School – or not: the first mass-use of Section 44(1)(d) & (e) Employment Rights Act 1996?

First, full disclosure: I am married to a teacher.  I have views about risks to her health and safety.  They are not necessarily her views, nor those of her employer, nor my firm.  They are, however, strongly held.

My views however on whether schools should reopen today are much less certain.  This thread by Peter Foster of the Financial Times sums up the issues well.

Can we squash this tiresome trope that teachers don't want schools to open? Or that arguments for closing schools are somehow preserve of liberal/wet child-eating commies….this is about hard choices as the #COVID19 is running out of control (R above 1) /1

— Peter Foster (@pmdfoster) January 2, 2021

The National Education Union has a more definite view.  Its advice to its member is “unsafe for you to attend the workplace at present”.  I’m not commenting on whether that is right or wrong, but from an employment law perspective it is interesting what they did next.

They advised their members to write to their head-teachers stating they would not be returning to work and giving reasons why.  They issued a model letter for this purpose. 

The letter tracks s44 closely.  The sections say:

“An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that

 in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work; or

in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger”

At the start of the pandemic, there was a lot of focus on this section.  Had its time come? It didn’t appear to be much used before, but if employers were pressuring employees to work in circumstances that might expose them to COVID, what effect might this legislation have?

We may be about to find out.  The NEU is encouraging mass use of the ‘Section 44 Letter’.

The letter highlights crucial words “serious…imminent…dangers…person(s)” to make the link to the statutory protection absolutely clear.  It talks about exercising a ‘contractual right’, which to the non-education specialist reads a little oddly (surely this is a statutory right?) but that might be in connection with another and much more important issue, which is that by approaching the issue this way the union avoids having to call for industrial action and go through all the formalities attendant on that.

As the union have been at pains to say, this is not a strike.  Were it so, and they had not balloted their members etc, teachers’ employers could sue the union for ‘inducing breach of contract’.  The union may be making a point that teachers are following their contracts here, not breaking them.  I’m not sure the point is right but a) I’m not a specialist in teachers’ contracts (I don’t think I’ve even read my wife’s) and b) it probably doesn’t matter for this purpose.

The letter also makes it clear that the sender will work, just from home and to provide cover to children of key workers or vulnerable children, as teachers did in the first national lockdown.  Anyone who has seen a teacher covering a class from home will be well aware this is no-one’s idea of a holiday.

Can schools stop paying a teacher who invokes this?  Some commentators have argued strongly they cannot.  Stopping pay, they say, must count as subjecting teachers to a detriment.  The principle remains to be tested.

‘Any detriment’ under s. 44 ERA 1996 must encompass withholding pay – without this purposive approach, the right to refuse work ‘in circumstances of danger’ would be completely negated. It is difficult to think of a more effective chilling tactic than withholding pay.

— Alan Bogg (@thebigbogg) January 2, 2021

As to whether the letter works generally, well, it might.  The letter isn’t a magic wand, its contents not a magic spell: the one school we are not concerned with here is Hogwarts.  What is legally important are the circumstances of the teacher who writes it: a school in the Scilly Isles is in a very different place in every sense from one in an inner city borough whose hospitals are full, for example. 

But, going back to Peter Foster’s thread above, what might seem reasonable to a government trying to manage the nation’s mental health as well as its economy is not necessarily relevant at all to a teacher on what we must term the front-line.  And they have rights. 

As I write this, it is announced that the Prime Minister is to address the nation this evening.  Perhaps we are on the verge of a second national lockdown.  If so, the mass s44 letter may become irrelevant and the statute continue relatively untested.  As an employment lawyer, I might regret this: as a husband, much less so.