Supply teachers who are in a 'pool' maintained by a LA, those located through the school's own contacts, or part-timers who wish to temporarily increase their hours, are likely to be employees of the school or LA for their period of supply work.
Are all supply teachers covered by the Agency Worker Regulations (AWR)?
The term ‘agency worker’ applies to you if you are engaged by an agency who finds you work at a school and you are paid by the agency rather than directly by the school. The DfE’s guidance on the AWR and supply teachers makes it clear that the AWR apply to agency supply teachers and cannot be avoided on the basis that the relationship between the school and the teacher is a “business to business” relationship outside the scope of the Regulations.
The Regulations do not, however, apply to you if the agency introduces you to a school which then itself gives you an employment contract; neither do they apply if you are part of a local authority (LA) ‘pool’ and are employed and paid by the authority or a school, or if you are engaged and employed by a school directly. The Regulations also provide that the right to be paid equally does not apply to agency workers who have a “permanent contract of employment” with the agency (see below).
The DfE guidance states that agency teachers employed by an umbrella company are entitled to the equal pay and conditions provisions of the AWR, unless they have signed a ‘permanent contract of employment’ with the agency.
What are the rights under the regulations?
There are 2 groups of rights: those applying from day 1 and those which apply after 12 weeks.
Day 1 Rights –From day 1 of an assignment, 'the hirer' (ie the school) must provide you with equal access to collective facilities and amenities which are already provided for other employees eg:
- access to facilities e.g. canteen facilities, prayer room, staff common room, mother and baby room, etc.;
- access to transport facilities e.g. local pick-ups;
- access to any car parking facilities;
- access to permanent vacancies (i.e. notification of vacancies and equal opportunity to access permanent employment.
Rights after 12 Weeks – After 12 weeks in the ‘same role’ with the ‘same hirer’ (see below), 'the agency' will be responsible for providing you with the same basic pay and conditions as you would have received if you had been employed directly by the school, eg:
- the basic pay rate (see below);
- hours of work, rest breaks, lunch breaks, etc.;
- holiday entitlement (included in the daily pay rate payable by schools which are covered by the STPCD - see below);
- paid time off for ante-natal appointments, and alternative work should a risk assessment require this.
The school also has responsibilities under existing health and safety legislation in regard to supply teachers in any event.
What rates of pay are payable to supply teachers under the AWR?
Regulation 5 AWR provides that, after 12 weeks, an agency worker is entitled to the same basic working and employment conditions as they would be entitled to had they been recruited directly by the hirer to do the same job.
Please note that the comparison is not to the pay of a teacher in a “comparable role” - it is to the pay which the agency teacher would receive if they were recruited to do the same role directly by the school. Where the supply teacher is on a daily contract, comparison will be to the pay of a supply teacher engaged directly on a day to day basis. Where the duration of the engagement is agreed at the outset to be for a fixed or minimum period of eg one term or one year, comparison will be with the pay of a teacher engaged directly on a fixed term contract for the duration of the engagement.
The STPCD allows schools to decide for themselves how much they will pay newly appointed teachers - they do not have to pay newly appointed teachers at the same pay rate or pay point as in their previous school or in previous direct employment. Many schools follow NEU policy by adopting a school pay policy which provides for pay portability ie previous pay entitlements for experience to be maintained for newly appointed teachers. Where a school pay policy is silent on the issue, it is possible to refer to previous pay decisions in order to infer a policy which should be followed in subsequent decisions.
Most school pay policies will not contain separate provisions on the pay of supply teachers engaged on a day to day basis. Where the school tries to argue that a policy on portability should not apply to such teachers, whether or not this is written into its policy, the NEU will argue that this approach is potentially discriminatory on various grounds and should not therefore be followed.
So agency supply teachers are, after 12 weeks, entitled to be paid the same pay rate as if engaged directly as a supply teacher or as a teacher on a fixed term contract. In schools and academies which follow the provisions of the STPCD, they are entitled to be paid at a daily rate of 1/195 of the appropriate pay rate as outlined above.
The NEU would therefore argue that an agency teacher who was employed on, for example, M6 or U3 in a previous permanent post should be paid at that same rate as a supply teacher. But that teacher would not be entitled to that rate after 12 weeks if the pay policy does not provide for pay portability or such a policy inferred from previous practice.
Schools are increasingly asking agencies to provide ‘cover supervisors’ whose roles do not include ‘specified work’ and who are therefore paid less. In circumstances where you are not undertaking specified work, there is no right to be paid the same rate as a teacher regardless of the fact that you are a qualified teacher.
Definitions of terms used
Who is the “hirer”?
The definition of the “hirer” is important because when you move between schools where the hirer is the same body, this does not break or stop the clock on the qualifying period provided the role is not a substantively different one. The AWR define the hirer as the person responsible for the 'supervision and direction’ of the worker. The DfE guidance states that in foundation and voluntary aided schools, the hirer will be the school governing body, while in community and voluntary controlled schools, the hirer is either the LA or the school's governing body depending on the circumstances. In academies, including free schools, the hirer is the proprietor of the school i.e. the academy trust.
Reg. 9 also defines ‘connected’ hirers, in an attempt to stop hirers and agencies deliberately moving agency workers around in order to prevent them acquiring AWR rights. Connected hirers are defined as hirers who are either directly or indirectly ‘controlled’ by another. This means that supply teachers working in various LA maintained schools in the same local authority area, or working in various academies or free schools under the same academy trust, can acquire AWR rights despite moving between schools.
The NEU argues that the local authority should be regarded as the hirer in community and voluntary controlled schools, enabling all continuous periods of work in such schools to be aggregated for the qualifying period. The NEU also argues that all local authority maintained schools within the same authority should be regarded as ‘connected hirers’, again enabling continuous periods of work to be aggregated for the qualifying period.
If you think your agency is deliberately rotating you between schools in order to break your continuous service, or stopping you building up 12 weeks’ service, you should contact the NEU (see below). Similarly, if you are being told by your agency that you are ‘changing roles’ within the same school, but in fact you are doing the same kind of work, this may also be an avoidance tactic and you should get advice.
What is the ‘same role’?
The 12 weeks’ work must be undertaken in the same role. A role will be considered the ‘same’ role unless it involves a substantially different type of work. The agency must send written notification to you if it intends to move you to a ‘new’ role. However, all classroom teaching is substantively the ‘same’ role for the purposes of the Regulations.
How is the 12 week qualifying period calculated?
The AWR provide that the 12 weeks must be continuous, although certain types of ‘breaks’ will not interrupt continuity by stopping the clock altogether, only ‘pausing’ it. Other breaks allow the clock to continue without pausing despite the interruptions. There are no minimum hours to be worked in a week, so any work done in a particular week means that that week will count. The following types of break, individually or in combination, ‘pause’ but do not stop the clock:
- any break for any reason up to 6 weeks;
- school holidays or other school closures;
- up to 28 weeks’ sickness absence or jury service.
If you are on maternity, paternity or adoption leave, these weeks all count towards qualification, so the clock continues ticking during the length of your assignment. Any other break of more than 6 weeks will have the effect of re-starting the clock at zero for the purpose of the 12 week qualifying period.
What about agency teachers who have ‘guaranteed work contracts’ with their agency?
The Regulations provide that the right to equal pay after 12 weeks does not apply to agency workers who have a permanent contract with the agency. These are known variously as “guaranteed work contracts”, “permanent contracts”, “pay between assignment contracts” or “Swedish Derogation contracts”. The contract must contain certain express terms including that Regulation 5 AWR is disapplied, and more importantly it MUST provide that you will receive a minimum payment during periods when no suitable work is available.
What about rights for pregnant workers?
All agency workers are covered by health and safety legislation from day one at work. Once your hirer or agency knows that you are pregnant, you are protected from pregnancy discrimination at work, under the Equality Act 2010. The Regulations provide that if you are pregnant and you have completed the 12 week qualifying period and are unable to complete the assignment for maternity related health reasons, you also have the right to be offered a suitable alternative assignment by the agency. The alternative assignment should last for the same duration as the original, and should be on no less favourable terms and conditions. If no such assignment can be found, the agency should suspend you on full pay for the duration (or likely duration) of the original assignment. There is also a right to paid time off for ante-natal appointments during assignments.
If you have an employment contract with the agency, the above rights apply to you from day one of that employment.
Am I entitled to sick pay?
You are entitled to statutory sick pay (SSP) if you meet certain conditions. You must have started your assignment and your weekly earnings must exceed £116 per week. If your pay varies, your entitlement depends on your average pay over the last eight weeks. If you qualify for SSP, your agency should make the flat rate payment for the duration of your sickness absence to a maximum of 28 weeks. SSP is not paid for the first three days that you are on sick leave. You won't be entitled to SSP if you are self-employed, if you have already had SSP for 28 weeks (and the 28 weeks ended within the last 8 weeks) or if you have received Employment and Support Allowance (ESA) in the last 12 weeks.
If your agency refuses to pay SSP, you should ask them for form SSP1 or written reasons for refusing SSP. If your agency refuses to do so, you can contact HMRC’s employees' enquiry line on 0300 200 3500. HMRC can investigate the dispute.
What if my school or agency does not give me these rights?
If you think you are not being given Day 1 rights i.e. equal access to collective amenities in the school where you are working, or you have not been notified of permanent job vacancies, the Regulations provide that you can request certain information from the school about why you have been treated in that way. Likewise, if you believe you have completed the qualifying period and should have been given Regulation 5 rights to equal pay and conditions, you have the right to ask the agency (and, if the agency does not respond, the school) why you are not being treated accordingly. There are NEU template letters to cover both these situations in the full downloadable guidance. However, we strongly recommend that you seek advice and guidance from the NEU before using them.
The school must respond to you about Day 1 rights within 28 days. The agency must respond to you about Regulation 5 rights within 28 days and, if the agency does not respond within that time, you can then send the same letter to the school which should also respond within 28 days. Failure to reply to any of the Regulation 16 requests above is not in itself a breach of the Regulations, but a tribunal can draw adverse inferences from any such failure, or from evasive or equivocal responses.
You should also contact us if your agency has told you that you are not covered by the AWR for any reason, or has given you an employment contract that says you will not get Regulation 5 rights.
Complaints can be made to the representative trade associations REC and APSCO about supply teacher agencies which are members of those bodies. They may issue warnings to the agency and ask it to take appropriate action and can ultimately exclude agencies from membership.
What if the hirer or agency treats me worse after I have asked about my rights?
You have the right not to suffer detrimental treatment by the hirer or the agency because you have raised issues (in good faith) about your legal rights under the AWR. It will be an automatic unfair dismissal for an agency to dismiss its employee for such a reason.
What can an employment tribunal do?
If a tribunal finds that there has been a breach of the Regulations it can make an award of compensation to cover any loss of benefit or expenses you have sustained due to the breach. The minimum award is 2 weeks' pay, but if the tribunal finds there has been a deliberate attempt to ‘evade’ the Regulations it can make an additional award of up to £5000. The award can be made against the school or agency depending on where the tribunal feels the responsibility lies. The tribunal can also recommend the school or agency takes specific action to rectify any breach of which it has been found guilty.
There is a three-month time limit for lodging a claim in the employment tribunal. That time limit will run from the date of the breach. For Day 1 rights, that is the date the school refused to give you access to collective facilities or employment vacancies. For Regulation 5 rights, it will probably be the date you qualify for those rights (i.e. when you complete the 12 week period). If you are bringing a claim for victimisation the time limit will run from the date of any detrimental treatment received.
Don’t forget, in addition to the rights under the AWR, you are still protected by existing discrimination law and health and safety legislation from day one of any assignment.