Coronavirus and lesson observations: legal considerations for school employers

What should schools and academy trusts consider before observing remote and face to face lessons in the Covid-19 crisis?

The pandemic has brought untold change and disruption to schools and academy trusts, but it has also brought in new and arguably more effective ways of working which are likely to become part of good teaching practice for years to come. How lesson observations take place and are used within schools and beyond is just one of these areas, giving rise to both threats and opportunities. In this article we consider the key legal considerations for schools and academy trusts in their planning for and use of lesson observations in the current crisis.

Observation and recording of remote teaching

The move to providing live-streamed and recorded lessons opens up fantastic opportunities for teachers to share and analyse the good practice of their own colleagues and their counterparts in other schools. There will be much to be gained for teachers at all stages of their careers and perhaps especially for trainee teachers in having access to a bank of recorded lessons or being able to join a remote teaching session as an observer.

There are of course a number of legal considerations for schools when planning such observations and recordings. These include ensuring that data protection and safeguarding protocols are in place and rigorously implemented. For more on this, please see our previous article on the topic of safeguarding and remote learning.  Schools planning to disseminate recordings of lessons must plan ahead to ensure that children will not be visible or that the child’s / parent’s consent is obtained prior to using their personal data in this way. It will be important to be clear with staff, pupils and parents at the outset on the purpose for which any broadcast or recording is made and with whom it will be shared. Schools should comply with their current data protection policies and refer to relevant privacy notices before embarking on initiatives of this kind.

Some schools may already have a “drop-in” culture where colleagues and senior leaders visit lessons informally to observe what is going on and lend support where necessary. It will be important to give teachers notice if there is to be a similar approach to “dropping in” remotely to live-streamed lessons. The purpose of such a drop-in should also be made very clear in advance. If the purpose is, for example, to identify and share good practice in maintaining pace during remote teaching, it is important that such drop-ins are not then used for another purpose, such as a performance management or capability process, without prior notice. 

The use of lesson observations in the current crisis

Although there is no longer any statutory limit on the number of lesson observations which can take place within a year, teaching unions have issued policy advice that teachers should have no more than three lesson observations per year for any purpose, totalling no more than three hours.

NASUWT has recently issued coronavirus-specific recommendations that schools should not carry out “discretionary lesson observations, learning walks and drop-ins” (i.e. those which go beyond contractual appraisal requirements) due to health and safety and workload concerns. It does however note that NQTs will still require a programme of lesson observation and in-class coaching and mentoring.

Schools and trusts should of course take into consideration the additional pressures on teachers at the moment and ensure that any lesson observation, whether formal or informal, is purposeful (with the purpose being shared in advance), focused on key school priorities, and above all supportive of staff and students.

Adapting lesson observation for performance management during the crisis

Some lesson observation is of course part of the normal annual appraisal process. The pay progression of teachers whose contracts incorporate the School Teachers' Pay and Conditions Document must be decided yearly on an assessment of the teacher’s performance. All schools must apply the trust’s or local authority’s pay policy and appraisal arrangements and appraise teacher performance in line with the requirements of the Education (School Teachers’ Appraisal) (England) Regulations 2012. NQTs will continue to be subject to induction policies and their performance must be assessed in accordance with the Education (Induction Arrangements for School Teachers) (England) Regulations 2012.

It will however be important for schools to adapt their normal processes to ensure that the appraisal procedure is fair and non-discriminatory in the very different circumstances encountered in schools throughout 2020.

The most recent guidance for full opening of schools states that schools should continue to follow any contractual pay progression regime linked to performance management. However, the guidance states that schools are expected to “use their discretion and take pragmatic steps to adapt performance management and appraisal arrangements to take account of the current circumstances”. It highlights that schools should ensure that teachers are not penalised as a result of any decision to restrict pupil attendance at schools.

This of course goes further than taking into account the disruption to pupil assessment when considering a teacher’s pupil progress-related targets. The impact of the virus on the school will need to be factored into appraisal against targets related, for example, to the use and dissemination of particular teaching techniques, lesson structure and pupil feedback. Where lesson observations have not been possible or where the content of lessons has been hampered by coronavirus protocols or absences, appraisers will need to make allowances for this in their judgements.

Key employment law considerations

Employers have an overall duty to act reasonably towards their employees, taking into consideration the particular circumstances which apply to the employee and the employer. Where employers act unreasonably, there is a risk that employees will resign and bring constructive dismissal claims on the basis of a breach of “trust and confidence”. This claim is based on the implied term in all employment contracts that employers and employees must not, without reasonable and proper cause, act in a way which is likely to damage or destroy the relationship of mutual trust and confidence between them. Although it may be more risky for staff to resign from their roles in the current climate, there is a risk of claims where schools place unreasonable demands on staff during appraisal and performance management processes, including imposing lesson observation requirements without making adaptations to take current circumstances into account.  Short of any formal claim any perceived unfairness could also have significant effects on the morale of staff.

Where a performance management or capability process may end in dismissal, it will be very important that managers adapt their expectations, improvement targets and deadlines to take account of the current challenges for classroom teachers. If an unfair dismissal claim is brought, the employment tribunal will consider whether the dismissal was fair in all the circumstances. This includes an assessment of whether the process followed was fair and is likely to involve an examination of how judgements were made about the teacher’s performance against targets for improvement and whether these adequately took into account what the teacher could realistically achieve in school during the pandemic.

Additionally, there may at present be an increased risk of claims relating to performance management processes where the employee could argue that decisions about dismissal or other sanctions were made because of a protected characteristic such as sex, pregnancy / maternity or age, or where employees have sought to exercise statutory rights in relation to Health and Safety. Employees who might have a condition which qualifies as a disability under the Equality Act 2010 could argue that they have been dismissed or subject to unfavourable treatment because of something arising from a disability, such as prolonged absence from work or a reluctance to take part in certain activities.

Where remote teaching is used as a covert means to monitor staff performance or conduct, employees may additionally seek to argue that their right to privacy has been infringed. For more on this area, please see our article on employee monitoring and Covid-19.

Because of the complexity of this area, we highly recommend that schools and academy trusts take specific legal advice on ensuring a fair process for dealing with performance concerns. This will help school employers to reduce and assess the risk of claims, especially during this unusual and challenging period for all those working in schools.