NAHT general secretary Paul Whiteman sent the following message to NAHT members on 2 January 2021

Since my last email to you on Wednesday (30 December), the team at NAHT has been working intensively to explore all the options that could be available to us collectively, and to you as individuals. 

Today I wanted to provide you with an update on that work.

Throughout the deliberations we have had to consider carefully which actions are most likely to have the desired impact, and which are feasible given the time constraints we face together with a desire to maintain the confidence of the communities you support.

We have also had to ensure that our members would be fully protected with regard to the action we take on their behalf, or that they themselves might take according to their circumstances.  

NAHT’s policy position is clear: We want to see children in school. It is the best place for their education and their wider well-being. We understand that the government has been seeking to strike a balance between minimising the risk of transfer of COVID-19 and providing face-to-face education for all children. 

However, the latest data shows that in large parts of the country, control of infection has been lost and the lack of understanding regarding the new strain has now created intolerable risk to many school communities.  

We are calling upon government to remove people in schools from the physical harm caused by the current progress of the disease and to work with the profession and Public Health England to establish new protocols and interventions to make schools covid-secure. More about this below. 

Our response - legal action 

On Wednesday, I instructed Queen’s Counsel to examine the government’s announcement and outline the legal options available to us. 

As a result, on Thursday afternoon, we commenced preliminary steps in legal proceedings against the Department for Education. 

This represents a significant step for us to have taken as a union, and it is not a decision we have taken lightly. 

Our colleagues at the Association of School and College Leaders accepted an invitation to join us in this action. 

The legal process we have instigated covers a wide range of issues from the scientific advice the government is drawing on, right through to the proposed arrangements for covid testing in schools. 

We are now awaiting the government’s response. That will determine our next steps. 

Once we have seen the response, we will need to rely on our appointed Queen’s Counsel and the NAHT and ASCL legal teams to determine the likelihood of success should we continue with the legal action. If at that point we need to take a different approach, we will be prepared to do so. 

Alongside this we have also been putting pressure on the government to revisit its list of ‘high risk’ areas. Many of you have been in touch to point out some of the starker anomalies and inconsistencies in the list of high-risk areas and, along with others, we have been pursuing all of these. Yesterday evening we saw the government announce that all London Boroughs would now be told to follow the contingency framework. We will continue to press this issue for other parts of the country.  

Section 44 - Social media speculation 

We are aware that there is conversation on social media regarding the use of Section 44 of the Health and Safety at Work Act for employees to refuse to work if they consider the workplace to be unsafe.  

We expect members will have several questions about this including what NAHT’s own position is on the matter, and what leaders need to do if they are informed by staff that they will not attend school. To support you with this, we will issue guidance today – you should receive a further email from us on this in due course.

Next steps and the immediate situation

I am acutely aware that we are only a matter of days away from the start of the term and, as such, many of you will have already been reviewing your risk assessments and speaking with governors, staff and parents. 

We now find ourselves in a position where some of those risk assessments could suggest that it will not be safe to open the school next week. As an example, an absence of staff could well mean that schools do not have capacity to open safely for all pupils. 

If, as a result of your risk assessment, you find yourself in such a position, we recommend you inform the LA or Trust immediately. Our advice team are also continuing to work with individual members and you can contact them on 0300 30 30 333.

We will be continuing to argue throughout the weekend that government needs to change its approach if we have any chance of success at keeping schools open to all pupils and not just for the most vulnerable and those of key workers. 

The government’s current approach is too simplistic and is damaging education. It is time to properly respond to what professional educators need rather than how attractive a headline may read. 

The government is alienating the profession, failing children and being reckless with the safety of the whole school community. 

We believe that the government should take the following steps:

• Move all schools to home learning for a brief and determined period for most children. 
• During this time, proper support to make the home learning experience as good as it can be should be provided. That includes technology and learning resources but also flexibility for school leaders to respond to their circumstances. A centralised, prescriptive approach is too constrained. 
• The government should then establish a properly organised, resourced and funded mass testing regime for schools in place of the botched DIY system currently being imposed. 
• Work should be undertaken with school leaders and PHE to establish and agree new covid-related safety measures in schools during the temporary restriction. 
• Urgently review its approach to special schools, APs and Maintained Nursery Schools to protect all staff and pupils in those communities.  
• Immediately prioritise vaccinations in education.
• Then agree an orderly return.

I think we can all see that, in the short term at least, a difficult and rocky road lies ahead.  No other generation of school leaders has had to face the sorts of challenges you are currently dealing with. My commitment to you is that we will continue to work tirelessly to support you and to stand by you in days, weeks and months ahead.  We will, of course, continue to keep you updated as to the latest developments and we have done throughout the last year.