The DfE has now published its latest update of its Coronavirus: safeguarding in schools, colleges and other providers guidance.
This builds on the previous guidance issued in April and in both versions the Safeguarding Unit has been given the opportunity to input. There is much in the guidance that remains unchanged, and so inevitably that which is new relates to the proposed phased return of pupils to schools from 1 June.
Risk assessment to the fore
Once again, the strong emphasis on risk assessment remains as we have flagged from the start. “It will be especially important” states the guidance “that wider opening risk assessments and Health and Safety risk assessments are appropriately linked into a school or college’s approach to safeguarding policy”. The guidance links into updated published guidance on managing school premises during the Coronavirus outbreak and in this guidance there is an inevitable focus on what schools need to be doing to recommission buildings, clean premises, ensure adequate ventilation and such like. Obviously, the link remains to the key guidance for schools on Actions to prepare for wider opening on 1 June.
Consulting and sharing risk assessments
The DfE guidance does not include any express requirement or expectation on the part of schools to publish the COVID-19 risk assessment which it recommends schools carry out, but it does recommend consultation with staff on the outcome of risk assessments. However, it is worth noting that in the DBEIS guidance issued to all other sectors there is a recommendation both to consult employees on your return to work risk assessment and to share it with employees and on your website. This latter recommendation becomes an expectation for businesses with more than 50 employees, which of course many schools will have. Whilst the guidance does not have statutory effect, schools may wish to fall within the letter and spirit of it. We think that schools should consider sharing the results of risk assessments and consulting with staff as necessary – they may have practical and helpful suggestions. In any event schools will want to tell staff the measures they are taking to protect them. We also think that in reality schools will wish to communicate to parents (and pupils) as appropriate the mitigation measures which they are putting in place as a result of having carried out their COVID-19 risk assessments. Given that schools are closed communities with known staff, children and parents, we would advise schools to consider publishing their COVID-19 risk mitigation measures on staff and parent portals. That way all the school community has access to it.
We draw a distinction between sharing the risk assessments themselves and sharing the measures which the school is putting in place as a result of the risk assessment. Risk assessments can, by their very nature, be both alarmist and subject to debate – the creation of either of which is unlikely to be productive. At the end of the day schools have legal duties of care owed to both staff and children and it is up to the school to reduce risk by reference to such government guidance, best practice and local setting input as they reasonably determine.
In governance terms we would expect school governors and trustees to have been consulted on the school’s return to school risk assessment. Risk is an important issue for governors to be on top of – and given that governors will be familiar with signing off on their school’s broader risk register, it seems entirely appropriate that they are consulted and asked to approve their school’s COVID-19 return to school risk register. Guidance for governing bodies can be sought from AGBIS.
Templates and checklists
The DfE guidance itself provides a link to the HSE guidance and checklists available. We would draw attention in particular to the HSE checklists on health and safety for classrooms.
For schools looking for an example of a COVID-19 return to school risk assessment we would recommend the template published by Essex County Council.
However, and as we always emphasise in the area of risk assessment and risk management, every school is different and carries different risks and different potential solutions. Ultimately assessing risk is by definition a bespoke exercise rather than an off the peg exercise, and schools should bear this in mind.
If you require further information about anything covered in this briefing, please contact David Smellie, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2020