Britain’s two largest teaching unions appear to be in disagreement as to whether teachers should attend school this week as coronavirus infection rates soar.

Many primary schools have started the spring term today, despite the NEU teaching union advising teachers that they have a legal right to refuse to work in unsafe conditions and that staff should be prepared to work remotely.

The union has also provided its members with a template letter to send to their headteachers, explaining that they are refusing to go into work because their workplace is unsafe, citing section 44 of the Employment Rights Act.

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However, the NASUWT teaching union says teachers who refuse to go into school would be breaching their employment contracts.

Advice on the NASUWT website states: “In circumstances where a union authorises or endorses or encourages its members not to attend or return to work in reliance on section 44 Employment Rights Act 1996 (ERA) (without a ballot mandate), would amount to the members being induced to breach their employment contract by the union.”

Meanwhile, the NEU said it expects most of its members will follow its advice, forcing most schools to switch to online learning for the majority of pupils. This morning it said that teachers in more than 6,000 primaries had sent the section 44 letters, saying they would not being going in to schools due to safety concerns. 

However the NASUWT website says this could be construed as “unofficial industrial action”.

It adds: “In summary, a union’s conduct in supporting members who refuse to attend the workplace might be construed as, or at least alleged to be, a tortious act; inducement of breach of contract in furtherance of a trade dispute being the most obvious.

“Further, members’ conduct in refusing to attend work, particularly where they are acting upon the union’s advice in concert with other members in the same workplace, might be construed as unofficial industrial action thus forfeiting the right to pay, or indeed, the right to claim unfair dismissal in the event of dismissal [see section 237 of Trade Union and Labour Relations (Consolidation) Act 1992].”

But an NEU spokesperson said teachers should still be paid because they are working form home.

The NASUWT says it “understands fully” the safety concerns of its members, but says they should follow its advice, including reporting to work as normal if they have been unable to speak with their line manager or headteacher about the school’s updated risk assessment and what additional measures the school has introduced to manage new risks associated with the new variant of the coronavirus.

The DfE has been contacted for comment.