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Supply teachers: Agency worker regulations

What are the Agency Worker Regulations 2010 and what protection do they offer supply teachers and support staff?

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 ‘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.

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.


Before April 2020, the regulations provided that the right to equal pay after 12 weeks did not apply to agency workers who have a permanent contract with the agency.

From 6 April 2020, guaranteed work – also known as ‘guaranteed work contracts’, ‘permanent contracts’, ‘pay between assignment contracts’ or ‘Swedish Derogation contracts’ – were abolished by the Government. This means that all qualifying agency workers now have a right to equal pay after 12 weeks, regardless of whether they are paid between assignments.

By no later than 30 April 2020 (unless the contract of employment is terminated on or before that date), temporary work agencies should have given agency workers with a Swedish derogation provision in their contract a written statement confirming that the derogation ceased to have effect from 6 April 2020. With effect from that date, the agency worker was entitled to rights relating to pay as part of the rights conferred by the AWR, subject to completion of the qualifying period as stated the regulations.

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 AWR 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.

This 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 antenatal appointments during assignments.

You are entitled to statutory sick pay (SSP) if you meet certain conditions. You must have started your assignment and you must earn an average of at least £120 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 eight 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 their refusal. If your agency refuses to do so, or you disagree about the amount of SSP you are receiving, you can contact the HM Revenue and Customs’ statutory payments dispute team for advice.

If you think you are not being given Day 1 rights, ie equal access to collective amenities or notification of permanent job vacancies, the regulations provide that you can request 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 AWR 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 these situations below. You should 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 equally pay and conditions 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 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.

Contact the NEU 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 certain rights.

Complaints can be made to the trade bodies Recruitment and Employment Federation (REC) and the Association of Professional Staffing Companies (APSCo) about supply teacher agencies that are members of those bodies. They may issue warnings to the agency, and ask it to take appropriate action and can ultimately exclude it, from membership.

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.

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 two 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 £5,000. 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 tribunal claims, which 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 equal pay rights, it is likely to be the last day of your assignment. If you are bringing a claim for victimisation the time limit will run from the date of any detrimental treatment received.

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.

NEU supply members with concerns or problems relating to their employment conditions should contact the NEU AdviceLine.

Template letters

These template letters are provided for you to use when writing to seek your AWR entitlements.

Alternatives to agencies graphic


Your rights to equal pay under the Agency Workers Regulations (AWR)

Supply teachers


Advice on your eligibility for and access to workplace pension schemes as an agency supply worker.

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Alternatives to agencies

The NEU wants to end the domination of agency employment by promoting and securing alternative and better employment models, including more direct employment by schools and local non-commercial alternatives to agencies for schools seeking supply staff.

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