The term ‘agency worker’ applies to you if you are engaged by an agency that finds you work at a school and you are paid by the agency rather than directly by the school. The Department for Education (DfE) guidance on the AWR and supply teachers makes it clear that the regulations 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 AWR.
The regulations do not 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 DfE guidance states that agency teachers employed by an umbrella company are entitled to the equal pay and conditions provisions of the AWR.
Securing your pay rights under the AWR
After 12 weeks in the same role with the same hirer, you should receive the same basic pay and conditions as someone directly employed. Although the law relating to AWR eligibility does not always allow certainty on whether or not you are entitled to a payment – see below for more details – you can often secure a payment in such circumstances simply by pursuing the matter.
Seek NEU advice before sending one of the template letters appended to this advice. If that does not deliver an agreed payment, seek further advice. Time limits apply to legal claims so do not delay in seeking NEU advice. NEU support in writing to your agency does not mean that you will receive NEU support in pursuing matters through any legal route.
There are two groups of rights: those applying from day one and those that apply after 12 weeks.
Day 1 rights - From day 1 of an assignment, the hirer (i.e. the school) must provide you with equal access to collective facilities and amenities already provided for other employees, for example:
- access to canteen facilities, prayer room, staff common 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, for example:
- 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 antenatal 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 and support staff.
The AWR provide 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.
The comparison is not to the pay of an agency worker in a ‘comparable role’ – it is to the pay that the agency worker would receive if they were recruited to do the same role directly by the school. Where the supply teacher or member of support staff is on a daily contract, comparison will be to the pay of a supply worker 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, e.g. one term or one year, comparison will be with the pay of a teacher/member of support staff engaged directly on a fixed-term contract for the duration of the engagement.
The school teachers’ pay and conditions document (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 that 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 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 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
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.
The regulations also define ‘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 staff 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 LA 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 LA maintained schools within the same authority should be regarded as connected hirers, 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. 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.
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. All classroom teaching is substantively the same role for the purposes of the regulations.
The 12-week qualifying period
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 six 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. Any other break of more than six weeks will have the effect of re-starting the clock at zero for the purpose of the 12-week qualifying period.