How should my employer take account of my ethnicity in relation to wider opening and how can I ensure it does so?

Employers’ legal duties in relation to health, safety and welfare of employees require an equitable approach to risk assessment which seeks to identify, manage and reduce the risks to all staff including risks which are specific to or greater for them.

The Government recognises that Black people are at greater risk of dying from Covid-19.  This must feature in your employer's decisions about who should work from home and who can work on the premises, as well as the safeguards for those with a heightened risk including Black staff who are asked to work on the premises.

Black staff are at greater risk by reason of ethnicity and are overrepresented in deprived areas which have been those most likely to have local lockdowns.  How and where you are asked to work should reflect that increased risk. The NEU is saying that, while those at higher risk may not necessarily have an automatic right to work from home, employers must take account of ethnicity and other matters which may be of particular concern to Black staff such as your work location or duties, local arrangements, your relationships with older relatives, your specific health conditions and/or your travel to and from work which may also create a heightened risk.

The levels of risk are subject to fluctuate and spikes maybe local or national. You and employers should ensure awareness of changes. What is vital now is to keep the R rate below 1, and that means employers and members should do all that they can to ensure case numbers remain low.

The NEU’s advice on ensuring safety for staff at higher risk sets out the key questions that your employer’s risk assessment should address, information about the increased risks to Black workers from Covid-19, a template letter for you to use to write to your employer and information on how to get NEU support. The NEU advises you to provide as much information as possible about your own situation when contacting your employer or responding to your employer’s risk assessment in order to help them assess the next steps.

To protect higher risk staff, all NEU reps have been asked to:

  • Share our guidance for higher risk staff  with members so they can assess their relevant health and personal circumstances.
  • Ask members to use this template letter to tell their line manager if they believe they are at higher risk and should work from home, providing supporting evidence from their GP where possible.
  • Collate member responses, insist that staff members who are or live with someone who is clinically vulnerable can work from home, and that other staff members, including Black staff, who consider themselves at higher risk can also work from home.
  • Use this model letter, counter-signed by all members, to collectively raise these concerns about protecting vulnerable and higher risk staff with the head teacher.

Your NEU school/college rep has been sent all relevant NEU advice and guidance. Their contact details are on your NEU membership card. If there is not a rep at your school then contact your branch/district secretary here, or else contact the NEU AdviceLine.

What can I do if I consider that I am higher risk because of ethnicity and other factors and the school/college does not agree?

Please read the NEU’s guidance for higher risk groups and, if you haven’t already done so, use this template letter to write to your employer. Include all relevant information and any supporting evidence and talk to your GP about your personal level of risk and possible protective measures in order to help you to explain matters to your employer. Involve your union rep as soon as possible and use your evidence and the data on risk to Black workers in the NEU guidance. Ultimately, you have a legal right to be safe at work.  

We have asked our employer to consider ethnicity in its risk assessments but this has not happened. What can we do?

Employers’ legal duties to employees require an equitable approach to risk assessment which considers risks which are specific to or greater for them. Your employer should be able and willing to demonstrate that it has considered employees’ ethnicity and that all decisions are individually appropriate.

Read the NEU’s guidance for at risk groups  and ensure that all Black members have written to the employer using this template letter and contacted their GPs to discuss the matter.  Contact your NEU rep for support with this as a collective issue if you have one or contact your local NEU officers.

If you know that colleagues are willing to collectively express their support, ask your rep to convene a Zoom meeting for all staff (including the head) and the chair of governors.  If you don’t have a rep, take the lead yourself or find a member of staff willing to arrange the meeting.  Seek to ensure that the meeting, if it takes place, is recorded or that one of your colleagues is given the task of taking notes.

Can Black staff refuse to go into the workplace if they feel it is not safe?

In some cases, you may think the workplace is unsafe for all employees.  In other cases, you may think it is unsafe for you specifically.

The NEU checklists should be used by you and your colleagues to determine whether or not you think the workplace is safe to open more widely or to be open at all.  If you think it isn’t safe, contact your branch/district secretary here,

If you are concerned about yourself specifically, the first step is to tell your employer that you have concerns. If you are unhappy with your employer’s response, contact your GP to discuss that response and seek further evidence to help you in seeking to reach agreement.

There are some protections in legislation (“section 44” and “section 100”) for employees who leave or refuse to enter an unsafe workplace but you should always seek NEU advice. Contact your NEU rep or contact your branch/district secretary here, for further advice about what is reasonable to say to your employer or if you are being asked to work at school when you do not feel safe to do so.

Can I be disciplined for not going into school if my head doesn’t agree that I need to work at home because I’m at greater risk?

Yes, it is possible that your employer will interpret a refusal by you to return to the workplace as a refusal to follow reasonable management instructions and invoke your school/college's disciplinary procedures.  Whether or not it would be lawful for your employer to take such steps will depend on the circumstances.  The legal test your employer must meet is that it has acted within the band of reasonable responses and/or in a non-discriminatory way.

The union will robustly defend any Black member who is disciplined, dismissed or threatened with dismissal for refusing to return to the workplace in the face of genuine safety concerns or anxiety conditions.

You should communicate concerns to their employer using this template letter and our advice on safety for staff at higher risk. Even if all the items on the joint unions’ checklist are met, employers should still consider the personal circumstances of all employees and also whether the heightened risk to Black staff has been mitigated by steps taken and, if not, whether additional steps should be taken to protect not only their health and wellbeing but that of the communities in which they live. Contact your NEU rep or contact your branch/district secretary here for support if you need to.

Have head teachers received information about safeguarding Black staff?

Heads should already know the greater risk to Black staff as it has been widely publicised.  The NEU has sent all heads advice on risk assessments including specifically for staff at higher risk.

The DfE has said that “schools should be especially sensitive” to the needs of Black staff in response to an NEU letter about the disproportionate impact on Black people and the implications for schools. Refer to the NEU advice on staff at higher risk to reinforce your case.

Where Black members do agree to return to the workplace, what support can they get from the union?

The NEU will continue to support members who agree to return to the workplace but who develop concerns subsequently about conditions at the workplace in general or risks to them personally.

Your NEU school/college rep has been sent all relevant NEU advice and guidance. Their contact details are on your NEU membership card. If there is not a rep at your school then contact your branch/district secretary here, or else contact the NEU AdviceLine.

What should I expect in terms of safety arrangements for Black staff and pupils on matters such as PPE and social distancing? 

The weakness of Government guidance does not absolve employers from their duty to protect the health and safety of employees, including through individual risk assessments.  

The NEU advice on protective equipment argues that masks and other PPE should always be provided where there is a risk of airborne transmission, for example working closely with pupils who are likely to spit or bite.  In such circumstances the employer should provide the necessary equipment and the training to use it. 

Our advice notes that the purpose of face coverings in other circumstances is usually to avoid transmission to others but that wearing them can offer reassurance to individuals.  While the DFE is not currently advising the use of face coverings, it has said that secondary schools can decide to require them in communal areas and should require them in areas of local restrictions.  The NEU advice is that individuals should be allowed to wear them for personal reassurance, and that the DFE and schools should consider carefully the WHO advice that secondary age pupils and adults should wear face coverings in communal areas of schools.

The NEU continues to argue that testing should also be made readily available for all staff on a regular basis. 

Is it fair for a head teacher to say that it isn’t acceptable under the Equality Act 2010 to give specific consideration to one group of people?

No, it is not only unfair but unlawful for a head teacher to refuse to take into consideration factors such as age, certain health conditions, pregnancy, gender, weight and of course ethnicity which increase the risks to individuals.  Ethnicity must be a factor when considering the safety of individual members of staff.

Are all Black staff classed as clinically vulnerable? Are sickle cell and thalassaemia considered as high-risk underlying health conditions?

While the greater risk of Covid-19 to Black people compared to the general population is established, being Black does not put you in the Government’s clinically vulnerable or clinically extremely vulnerable categories. The risk to individuals depends on a wide range of variables including their ethnic group, age and specific health conditions. Anyone with sickle cell or thalassaemia is at high risk and would fall into the clinically extremely vulnerable (formerly “shielding”) category and should be at home. For all other employees, the risk assessment for you as an individual should take into account all the factors that put you at greater risk; being from a Black ethnic group is one of those factors. Read the NEU’s guidance for higher risk groups.

How can I get my school to understand that Covid-19 has had a traumatising effect on Black staff, pupils and parents and that there is a need for extra support?

Black staff may experience compounded anxieties because of the evidence about racial disparities, the events in the USA and the number of Black staff in the NHS and in Black communities who have been died. Black staff are more likely to have traumatic experiences as a result of Covid-19 in relation to their own families and this needs to be acknowledged in workplaces. Staff will also be witnessing the trauma of students and colleagues, compounding their own trauma, something that is referred to as secondary trauma. 

Rushing back to ‘normal’ should not be the priority and emotional well-being must be placed at the heart of students’ learning and rebuilding relationships and routines in school. 

The NEU is advocating for education settings to prioritise care and wellbeing during the phased return to on-site education. In line with this the NEU produced 5 principles of learning (done in the summer term but relevant now)  to support schools and colleges to respond appropriately to the individual and collective needs of pupils and staff. There is also NEU guidance for supporting the mental health of primary students and secondary students

It is really important that education changes to respond to the experiences and needs of all children and this must include black children’s experiences.  The NEU is campaigning for time and space for a different education approach during and after this crisis

Staff must be well supported in order that they are able to support children. The NEU believes taking a trauma informed approach will help school leaders more effectively support staff and can foster emotional and mental well- being across the whole school community.

The NEU recommends that ongoing support for all staff, including leaders, should include: 

  • giving staff a time and space to share their experiences;
  • giving staff the ability to reflect on how this has impacted on their wellbeing and their work; and 
  • sharing experiences and strategies to develop collective resilience.

The NEU has also produced this guidance on supporting the mental wellbeing of staff.