NEU Checklist for supply educator members

If you are considering an offer of supply work or are asked by an agency to say whether you are available for supply work, read this NEU checklist for supply educators before responding.
 

NEU Survey on Supply Worker Employment and COVID-19

This NEU survey report sets out the findings of a survey conducted in April/May on how supply workers have been treated during the current crisis.

The various arrangements offering financial support to businesses and workers during the coronavirus crisis are not mandatory and involve no new rights for workers. The NEU’s position, however, is that businesses which have made significant profits from the hard work of our supply members over the years should do everything possible to ensure they receive financial support. The latest DfE guidance is available here.

The support available to you depends on your working arrangements prior to schools closing. These are summarised below.

I was employed on an ad-hoc/short-term assignment basis directly by a school or multi-academy trust.

If you’re able and willing to work, you can continue working. The DFE advice is that schools can continue to engage you and pay you as normal if they need temporary staff.

Otherwise, the Government advice is that employers should provide such staff with the same support received by agency staff who are furloughed.  HMRC says that “where employers receive public funding for staff costs, and that funding is continuing, we expect employers to use that money to continue to pay staff in the usual fashion – and correspondingly not furlough them.” The DFE advice is that where schools had expected to employ such staff and had budgeted for this, they should pay those staff at 80% of their typical pay, normally calculated over a 12 week period and up to a maximum of £2500 per month.

I was working on an ad-hoc/short-term assignment basis through an agency.

If you’re able and willing to work, and there is work available, you can continue working. If there is no work available, then the agency can furlough you and access the Coronavirus Job Retention Scheme, which reimburses the agency for paying you 80% of your typical pay, normally calculated over a 12 week period and up to a maximum of £2500 per month.  See below for fuller details.

I was working on an ad-hoc/short term assignment basis through an umbrella company.

If you’re able and willing to work, and there is work available, you can continue working. If there is no work available, then the umbrella company can furlough you and access the Coronavirus Job Retention Scheme. Note: Due to contractual arrangements, some umbrella companies continue to argue that they can only pay workers the National Minimum Wage element of their pay. NEU disagrees with this position: we believe that revised HMRC advice now makes clear that all elements of pay (even when described as discretionary) are payable.

I was employed on a long-term temporary assignment directly by a school or multi-academy trust.

If you’re able and willing to work, you should continue working. The DFE advice is clear that the school should continue to pay and employ staff who would have continued to work there but for the coronavirus crisis, at least until the end of their engagements. If you are engaged directly, and employed and paid by a local authority, school governing board or academy trust, you are a public sector employee. The HMRC advice is that “where employers receive public funding for staff costs, and that funding is continuing, we expect employers to use that money to continue to pay staff in the usual fashion – and correspondingly not furlough them.”

I was employed on a long-term temporary assignment through an agency or an umbrella company.

Cabinet Office guidance states that agency workers (including those employed via an umbrella company) who are on long-term assignments to the public sector, but unable to work because of COVID-19, should be paid 80% of their salary (to a maximum of £2,500 per month) for the remainder of their assignment, or until the assignment can resume. This is a separate (but similar) arrangement to the Job Retention Scheme (known as furloughing).

Public sector education employers, including maintained schools, academies and colleges are strongly encouraged by the government (and DfE) to take the outlined approach, but central government cannot legally require them to do so.

I was working on an ad-hoc/short-term assignment basis through a local authority supply pool.

If you’re able and willing to work, you can continue working. NEU and Government advice is that you should continue to be permitted to work where you would have continued to so but for the coronavirus crisis. The NEU’s position is that the Cabinet Office advice applies, which states that contingency workers (supply staff) who are unable to work because of COVID-19, should be paid 80% of their salary (to a maximum of £2,500 per month).

The difficulty in this situation will be calculating how much supply staff should be paid during the crisis period. That is something you should negotiate with the employer, but it would not be unreasonable to calculate an average level of pay over a period of 12 weeks, ending on 28 February 2020.

I was working on a long-term assignment through a local authority supply pool.

If you’re able and willing to work, you can continue working. The NEU and Government advice is that you should continue to be permitted to work where you would have continued to so but for the coronavirus crisis. The NEU’s position is that the Cabinet Office advice applies, which states that contingency workers (supply staff) who are on long-term assignments to the public sector, but unable to work because of COVID-19, should be paid 80% of their salary (to a maximum of £2,500 per month) for the remainder of their assignment, or until the assignment can resume.

The key points about the Coronavirus Job Retention Scheme

  1. Employers can claim for furloughed employees who are shielding in line with public health guidance, or need to stay at home with someone who is shielding, if they are unable to work from home and would otherwise be made redundant.
     
  2. Employees who are unable to work because they have caring responsibilities (i.e. childcare) resulting from coronavirus can be furloughed.
     
  3. Employers cannot claim under the scheme for employees receiving Statutory Sick Pay (SSP). But such employees can be furloughed and claimed for once they are no longer receiving SSP.
     
  4. If a worker has more than one job they can be:
  • furloughed for each job. Each job is separate and the cap of £2,500 applies to each employee individually.
  • furloughed in one job and continue to work for another employer (and be paid as normal).
  1. Employees on fixed-term contracts can be furloughed and their contracts renewed or extended during the furlough period. If the fixed-term expires during the furlough period, the employee will no longer be eligible for the scheme.
     
  2. Furloughed employees can undertake training and should be encouraged to do so.
     
  3. Employers’ National Insurance and pension contributions will still need to be paid and employers can claim for these (but only up to the mandatory employer pension contribution).
     
  4. Employers can claim for any regular payments they are obliged to pay workers, including wages, past overtime fees and compulsory commission payments. Payments that are related to performance are not included.
     
  5. If contractually allowed, employees are permitted to work for another (new) employer while they are furloughed. New employers must ensure they complete the HMRC new starter checklist form correctly, particularly Statement C.
     
  6. Furloughed employees will retain their employment rights including (but not limited to) SSP, maternity and other parental rights, unfair dismissal and redundancy payment.

As from 10 June the Coronavirus Job Retention Scheme (CJRS) is closed. No employee or worker can now be furloughed after 10 June 2020 if they have not been furloughed at some stage prior to that date.

Will I receive furlough pay over the school summer holidays?

Unfortunately, the position is unclear. The NEU believes you should be paid if your furlough payments were calculated over 52 weeks.

In addition, when asked in parliament whether supply staff could receive furlough payments during the school summer holidays the Treasury confirmed that they could be but added “where they are otherwise eligible for the scheme.” It is not clear what “otherwise eligible” means and so the NEU has written to the Chancellor requesting clarification.

What can I do if my agency or umbrella company refuses to pay me during the school summer holidays?

Please contact the Adviceline for support in pursuing the issue with your employer. However, it is important to remember that the scheme does not create any employment rights and is a purely voluntary scheme. This means that there is no legal redress should your employer disagree with NEU’s position.

Is the CJRS changing?

The CJRS is changing in two ways.

  1. From 1 July the scheme enables flexibility so that the worker can partially work, and the rest of the time be furloughed. The HMRC guidance sets out how employers can work out a worker’s “usual hours”, based on the last tax year, if the hours are not set.

For example, if your “usual hours” last year were 25 hours per week, you can work 10 hours and be furloughed for remaining 15 hours.

  1. From 1 August employers will be required to contribute to furlough payments.

In August employers will have to pay the employer’s national insurance contributions (ENICs) and pension contributions.

From 1 September employers will pay 10% of furlough payments, ENICs and pension contributions.

In October employers will pay 20% of furlough payments, ENICs and pension contributions.

The Scheme will end on 31 October 2020.

At this stage we do not know if agencies and umbrella companies will continue to access the scheme once the changes come in, but we will do our best to persuade them to do so. 

See our more detailed advice on furlough for supply educators below.

Please contact the NEU adviceline if you need more specific assistance – adviceline@neu.org.uk.