A row has broken out between one of Britain's largest teaching unions and the DfE as to who would be liable if unvaccinated teachers die from Covid after schools return on Monday.
The NASUWT has written to teachers' employers, including independent schools, local authorities and academy trusts, stating they would be in breach of the European Convention on Human Rights if staff died from contracting Covid-19 having been required to return to school pre-vaccination.
And the union has warned the employers that they are legally responsible for teachers' "safety and wellbeing".
NASUWT general secretary Patrick Roach said that the return of all pupils on Monday will pose a greater risk to teachers than the rest of the public.
"In rare but realistic instances, a teacher could die and/or contract debilitating long Covid-19," he wrote. "This is not an exaggeration or hyperbole."
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But the DfE has responded in a daily update emailed to headteachers across the country in which it says it wishes to "correct any misapprehensions" following the letter, and that "it does not automatically follow" that any legal liability would rest with schools if a staff member becomes unwell after being exposed to the coronavirus at school.
The DfE update states: “You may have seen the letter dated Friday 26 February from the NASUWT to Directors of Education and Children’s Services, CEOs of MATs, sixth-form colleges and independent schools. We have had some queries relating to the letter’s content on employer liability…We thought it helpful to make some observations, to correct any misapprehensions you may have.
“In our view, if a member of your staff is exposed to coronavirus (Covid-19) in the workplace and subsequently becomes unwell or worse, it does not automatically follow that any legal liability would rest with the employer.
"This also takes into account any transmission to another member of their household. In asking schools to welcome all pupils from Monday 8 March, the government has taken account of human rights and health and safety laws, and the guidance which we produce for schools and colleges is always drafted with a view to helping them meet their legal obligations.
“The Department for Education’s view is that if settings follow our guidance (which has been endorsed by Public Health England) and meet their obligations under health and safety laws, then they will also meet their obligations under human rights laws”.
The NASUWT letter says: “The NASUWT’s position on its members’ Convention Rights is clear and unambiguous, namely:
1. If any of its members died from contracting Covid-19 having been required to return to school pre-vaccination, his or her Article 2 rights would be infringed. This is particularly the case since the government has it within its power to provide early vaccination to teachers, including NASUWT members.
2. Having its members placed at risk of catching and transmitting a serious disease to their families/support bubble is a material infringement of their right to family and private life.”
And the union goes on to warn teachers' employers about their "obligations under the health and safety legislation".
It suggests they get in touch with their insurers and concludes: "The ultimate responsibility for a decision on the safety and wellbeing of our members rest with you."
In January, the NEU teaching union said figures showing teachers were at no greater risk of dying from Covid than other professionals risked ‘misleading the public’ and were 'only half the picture'.