TWO local authorities and a number of schools across Scotland are failing in their duty of care to their teaching staff over risk assessments and could face legal action to comply, a union has warned.

The Educational Institute of Scotland (EIS) has written to all education directors to highlight that individual risk assessments must be updated to take account of the rapidly evolving circumstances related to Covid-19.

And they have warned that where local authorities have failed in their duty of care, they will move to initiate collective greivances against them.

The Herald understands that there are disputes against two local authorities. The EIS will not identify the councils as negotiatons are taking place.

In the letter, the union raised concerns that some councils are requiring vulnerable staff to declare themselves unfit for work rather than accommodating them by working remotely.

"Again, this is not an acceptable practice which we will challenge, legally if required," it said.

It is understood any legal action being explored will relate to equality laws.

READ MORE: Scots schools Covid safety fears as teachers survey reveals "high degree of concern" over re-opening

It is asserted that shielding teachers are disabled for the purposes of the Equality Act 2010 and the EIS says pursuing working from home is a reasonable adjustment.

"We will also consider whether our members in this position have been discriminated against because of or arising out of any disability by the actions of any council either requiring them to work in an unsafe environment or requiring them to declare themselves unfit for work," the letter says.

It comes two months after the NASUWT teachers union in Scotland put Scottish councils and the government "on notice" over potential legal consequences as concerns continue to surface over the safety of the re-opening of schools.


In a stark letter to Scotland's education directors, the NASUWT said it was warning employers and the Government that it was "reserving our members’ legal rights" over any issues arising from the return to full-time education.

A recent survey of teachers across Scotland, carried out by the EIS, indicated that 16% of teachers are in Covid-19 ‘at-risk’ categories, 4% of teachers were in a shielding category prior to August 1 and 1% of teachers identify as Black and Minority Ethnic (BME).

EIS says these are the groups of teachers for whom updated individual risk assessments "are an issue of particular concern", given the higher risk that Covid-19 poses to people within these categories.

READ MORE: Teachers warn of legal consequences over Covid safety as Scots schools re-open

EIS general secretary Larry Flanagan said, “Local authorities have a clear duty of care to the teachers than they employ. It is simply unacceptable, and a breach of that duty of care, for local authorities to fail to keep individual risk assessments for teachers up-to-date to account for the changing risk factors associated with COVID-19.”

Mr Flanagan added, “A failure to review risk assessments in light of significant change would mean that risk assessments would not be suitable or sufficient in terms of Health & Safety at work regulations and, additionally, would also be at odds with current advice from Public Health Scotland.

"Given the rising level of infection across the community, it is essential that local authorities update their individual risk assessments to ensure that the staff in our schools remain safe in their places of work.”

The EIS chief executive's letter says the risk assessments should be revisited after the Scottish Government’s Covid risk assessment tool was revised.

It spells out one communication after a request to review risk assessments.

It said: “It has been decided following discussions with other local authorities that risk assessments will not be redone on the basis of new risk matrix tools being released.”

He wrote: "That position is not acceptable to the EIS.

"It is a breach of the employer’s duty of care and we have advised our LA secretaries to initiate collective grievances where this has occurred.

"Apart from the issue of the revised risk assessment tool, the rising level of infection in the community should itself trigger a review of bespoke assessments. Although shielding has not been reintroduced at this stage, and the First Minister posited this in a positive sense as not imposing social restrictions, for those in employment there is clearly an increased risk which needs to be addressed."

A Convention of Scottish Local Authorities spokesman said: “Our main priority is ensuring that the health and safety of everyone within our schools is protected. As agreed with Scottish Government and public health advisers, councils are using a suite of appropriate risk assessment tools to ensure the safety of employees. Where any individual is worried they should in the first instance contact their line manager to discuss the risk assessment in place for them and they should also contact as appropriate their HR or Health and Safety team.

“Councils will continue to provide a safe education environment for pupils and staff alike in line with scientific advice and national guidance. At the same time COSLA will continue to work with partners at the National level through the Education Recovery Group.”