What are the legal risks to re-opening schools?

Teachers unions have called for the government to step back from proposals to start reopening schools and nurseries in England from 1 June. Whichever date is chosen schools will need to consider the duty of care and safeguarding they owe to their students and their staff before they can fully reopen. To reduce the substantial risk of negligence claims for breach of this duty of care schools and nurseries will need to conduct a careful risk assessment and put in place all reasonable protective measures.

To meet their duty of care schools could adopt a range of measures:

1. Social distancing – possibly including smaller class sizes and staggered opening and closing times.
2. PPE – however current Department for Education guidance currently maintains that educational staff do not require PPE, and there are no plans to organise provision of PPE to schools.
3. Enhanced cleaning
4. Testing - the National Education Union had demanded that testing be made available for all school staff still required to attend although testing availability remains limited. Schools and nurseries will need to stay alert to developments in the availability of testing for school staff.

Further challenges include staff shortages and, for private institutions, a reduction in cash flow as parents either remove their children from the institution or are unable or unwilling to pay ongoing fees.

To help mitigate the problem of staff shortages in the short term schools and nurseries may continue to use volunteers to support their work, provided that they are DBS checked.

Whilst there have been measures announced to stop commercial evictions until 30 June, those private schools and nurseries with rent or mortgage payments to consider should try wherever possible to agree sensible terms with their landlord or lender. It is advisable to strike a balance between managing cash flow in the present, and minimising the build-up of debt and risk of action being brought for missed payments going forward.

The most important message is that all schools and nurseries need to consider the steps they can take to minimise the risk of infection once they re-open. This will involve keeping up to date on the latest guidance and policy from the Department for Education. It will be crucial to carry out a thorough risk assessments, consider the measures that will be required to minimise the risks identified, and determine whether it will be possible to adequately protect both children and staff, before taking the decision to re-open fully. In addition, private institutions will need to consider their cash flow position, and where appropriate should try to reach an agreement with landlords or mortgage lenders in relation to current and future payments, to improve their chances of survival in the long term.