School staffing levels and the impact of Covid-19

What are the legal considerations for school leaders?

It is clear that school staffing levels are being impacted by Covid-19 self-isolation and staff taking leave to care for their own isolating family members and relations. The current difficulties in obtaining a Covid-19 test and the need to prioritise symptomatic people and health workers are only likely to exacerbate staff absences in coming weeks.

Staff – pupil ratios

There are some cases in which staffing levels are dictated by law. At Early Years Foundation Stage (EYFS) statutory minimum adult to pupil ratios are in place dependent on the age of the children in question and the qualification level of members of staff.

Changes to EYFS requirements during the pandemic

As part of its measures during Covid-19 pandemic, the Government has temporarily changed some of the requirements of the EYFS statutory framework to help schools and nurseries to handle fluctuation in demand and staffing levels. These changes to staffing level requirements will end on 25 September 2020. However, there will be a transitional period of up to two months following that date.

New regulations also come into force on 26 September 2020 which will continue to disapply and modify some EYFS requirements for providers where it is not reasonably practicable for them to comply because of local Covid-19 restrictions imposed under the Public Health (Control of Disease) Act 1984 or under the Coronavirus Act 2020. However, unlike the current modifications, these regulations will not apply to all EYFS providers. Also, there is a distinction, and potential delay, between government guidance and formal local restrictions triggering the statutory modifications.

The usual rule for maintained nursery schools and nursery classes in maintained schools caring for children aged 3 and over is that there must be at least one member of staff for every 13 children and one member of staff must be a qualified teacher (level 6). Where they apply, the Covid-19 modifications relax this rule so that providers should use reasonable endeavours to ensure that at least one member of staff is a qualified teacher. If that is not possible, providers should do what they can to follow the usual ratio of one member of staff to every 8 children where a qualified teacher is not working with the children. In this case, at least one member of staff must hold a level 3 qualification and providers should use reasonable endeavours to ensure that at least half the remaining staff hold a level 2 qualification.

Staffing ratios for infant classes

Broadly speaking, infant classes at maintained schools and academies are subject to a statutory requirement to have one qualified teacher to 30 pupils. There has been no change to this requirement during the Covid-19 pandemic.

Staffing levels for Year 3 and above

Aside from the above, there are no particular staffing ratios which apply in law. Teaching unions recommend specific class sizes for different ages and activities, but these are policy aims rather than being legal requirements on the school. Schools will of course have to consider what staffing levels are necessary to comply with their health and safety duties, for which please see the further section below.

Must a qualified teacher be in place?

There are statutory rules concerning the qualification and experience of those who carry out “specified work” in schools, which includes the planning and delivery of lessons. In general, staff who carry out such specified work are required to have qualified teacher status. However, there are a number of exceptions to this, including where the member of staff is equivalent to a higher-level teaching assistant, is carrying out specified work, and is supervised and directed by a qualified teacher. It may therefore be possible for a qualified teacher who is isolating at home, but otherwise fit and able to work, to supervise and direct a higher-level teaching assistant remotely where it is not feasible for another qualified teacher to supervise and direct the teaching assistant. Supervising pupils who are carrying out work set by a qualified teacher during absence is not “specified work”. Cover supervisors may therefore undertake such supervision in the short-term, but a qualified teacher should be put in place to cover longer periods of absence.

Health and safety duties

Alongside the above, schools have a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of their staff and pupils. This will include having systems in place to deal with lower than usual levels of teaching staff in the school and taking into consideration safe staff workloads and levels of supervision of children.

Schools should carry out, consult on and implement risk assessments which include consideration of any risks associated with low staffing levels in the current circumstances.  Such assessments will need to take into account relevant school activities, facilities and Covid-19 protocols as well as any particular risks associated with the pupils and staff concerned. Risk assessments are likely to need more regular review and revision than is usually the case because of the fast-changing nature of the pandemic and its impact on the number of staff and pupils who are able to attend school.

As with any emergency protocol, it will ultimately be for school leaders to make a judgment call about whether the school can continue to operate certain activities given the numbers of staff available. Governors and trustees must approve the policies and risk assessments which govern such decision making and must be kept informed of developments in case these need updating. Ultimately, governors and trustees must approve the arrangements that will apply, for example where the decision is taken to cease face-to-face teaching for a large number of pupils and to move to remote teaching. These may be the difficult decisions which school leaders face to avoid the full closure of the school, which the Government and many of those working in education are keen not to see.