Agency Worker Regulations (AWR)
Updated August 5th 2011
Agency Worker Regulations (AWR) is part of EU legislation which becomes law in England and Wales on Oct 1st 2011. It was designed to protect the most poorly paid workers but has emerged more as a “one size fits all” bill leading to huge amounts of confusion. We have been attending meetings and workshops with BIS, REC and other professional bodies for the last 6 months to ensure we and our clients are fully prepared. Initially BIS and the DfE insisted there would be no separate guidance for individual sectors. However, after huge amounts of lobbying DfE have clarified a few, though not all of the issues.
The guidance below addresses issues relating to agency supply teachers and the application of the Agency Workers Regulations 2010 which come into force on 1 October 2011. It addresses a limited number of issues which relate only to temporary agency workers who are supply teachers. It is therefore very important that you read this additional guidance in conjunction with the main guidance on the BIS website to understand all the implications of the Regulations.
Who is the hirer for agency supply teachers?
According to the Agency Workers Regulations, the “hirer” is a “person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person”.
A “hirer” will have its own legal identity and is responsible for supervising and directing the agency worker while they undertake the assignment. The question of who is the hirer is a matter of fact to be determined in the light of the circumstances of each case.
Maintained Schools
In foundation schools, voluntary aided schools and foundation special schools, the “hirer” is the school’s governing body, being the legal entity to whom the worker is supplied and who is responsible for the supervision and direction of that worker.
In community schools, voluntary controlled schools, community special schools and maintained nursery schools, the “hirer” is either the local authority or the school’s governing body. It is a matter of fact to be determined in each case and depends on to whom the worker is supplied and who supervises and directs that person’s work.
An agency supply teacher can move between schools where the same local authority is the hirer without stopping the clock on the qualifying period unless it is a substantively different role. If an agency supply teacher moves to a school where a different local authority or a different governing body is the hirer, the qualifying clock resets to zero.
Academies
For Academies, including Free Schools, the “hirer” is the proprietor of the school (often known as the “Academy Trust” - the legal entity that has entered into a funding agreement with the Secretary of State in relation to the running of the Academy), being the legal entity to whom the worker is supplied and who is responsible for the supervision and direction of that worker.
An agency supply teacher can move between Academies where the same Academy Trust is the hirer without stopping the clock on the qualifying period, unless it is to a substantively different role. If an agency supply teacher moves from an Academy to a maintained school or into employment with a different Academy Trust the qualifying clock resets to zero.
Independent schools
In independent schools, the “hirer” is the proprietor of the school.
Generally speaking, if agency teachers move from one independent school to another (which has a different proprietor), the hirer would change.
In some cases, a proprietor may have more than one school, so the qualifying period would not be broken if an agency teacher changes schools under the same proprietor unless it is a substantively different role.
How is holiday pay accrued?
After the qualifying period, agency supply teachers will be entitled to the same terms and conditions, including working time and annual leave, as direct recruits. It should not be necessary to pay agency supply teachers for additional leave to which direct recruits are not entitled. For permanent teachers in schools maintained by an authority in England and Wales there is no specific provision in the School Teachers’ Pay and Conditions Document for holidays or annual leave. There are provisions on working time.
As for other workers, agency supply teachers should receive payment for statutory annual leave when they take the leave, i.e. be paid on a 1/365 basis at regular intervals throughout the year.
What if a qualified teacher is hired to do a cover supervisor or teaching assistant role?
The relevant rate of pay is determined by the nature of the job, not the qualifications of the teacher.
For example, if a school asks a temporary work agency to provide a Cover Supervisor or a Teaching Assistant, and the person engaged to do the work is a qualified teacher they would be expected to carry out the role of a cover supervisor or a teaching assistant and be paid as cover supervisor or teaching assistant. The role of a cover supervisor is to supervise a class in carrying out a pre-prepared exercise but it does not involve teaching a class. If, however, the person is asked to do specified work as part of this role then after the qualifying period, they must be paid as outlined below.
What if a qualified teacher is hired to do a teaching role in a maintained school?
If the school asks a temporary work agency to provide a teacher to carry out specified work in a school and the person engaged to do the work is a qualified teacher they should be paid as a qualified teacher. If the person engaged to do the specified work is an unqualified teacher they should be paid as an unqualified teacher. “Specified work” means planning, preparing and delivering lessons and courses to pupils and assessing and reporting on the development, progress and attainment of pupils. The pay scales for teachers in schools maintained by a local authority are set out in the School Teachers’ Pay and Conditions Document (this does not cover teaching assistants or other people who are employed to carry out specified work under paragraph 10 of Schedule 2 to the Education (Specified Work and Registration) England Regulations 2003).
Academies, Free Schools and independent schools are free to set their own pay and conditions of employment. As such if a temporary workers’ agency is asked to supply a teacher to one of these schools it will need to request information from the school as to the relevant terms and conditions to be applied to the agency supply teacher after 12 weeks in the same role with the same hirer (refer to main guidance). These are of course subject to the usual requirements under employment law.
What is the impact of school closures?
The Agency Workers Regulations recognise that in some instances a workplace might close due to the temporary cessation in the hirer’s requirements for any worker to be at the establishment.
This could be applied to a school closure (for example, summer holidays). If an agency supply teacher is working before and after such a closure and is, for example, 6 weeks into a qualifying period for equal treatment, the qualifying period would pause at the end of one term and start again at the beginning of the next so long as the agency worker returns to the same job with the same hirer.
The General Guidance
To summarise: from Oct 1st, after Day 1 temporary workers will be entitled to the right to access collective facilities (such as canteens, childcare and transport services) and the right to receive information on vacancies within the hirer. After 12 weeks in a role agency or temporary workers will be entitled to equality with permanent staff for working time, hours, rest periods, night work, pay and annual leave.
After 12 weeks it is the responsibility of the individual to speak to the agency and request any changes be made. There will no doubt be “test cases” in law in Feb 2012.
In the meantime we are confident in our research, comparator information and plans for compliance. We will be keeping all candidates fully informed.
As far as clients are concerned, we need to communicate. If you have any specific questions please feel free to mail me on jean@axcis.co.uk or call me or your consultant on 0800 107 9900. We are also happy to arrange a visit at your convenience.
The education sector is, as ever, in flux and subject to new legislation. We want to support you so that you are able to focus on what is surely the most important thing: the education of our young people in the classroom.
Our view
- Our main aim is to protect our clients and support our candidates and we believe we can do both. We are working hard to ensure we are fully prepared for Oct 1st and will issue regular updates.
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There will be NO CHANGE for candidates currently in position until the end of December
- A large number of agency teachers choose to receive “rolled up” holiday pay in their daily rate and we expect this to continue.
- Many teachers are paid via umbrella companies in order to receive tax exemptions on expenses for example. The companies we work with are also taking legal advice re their own compliance. We are awaiting their final feedback and this is also key.
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Non-Teaching staff: TA’s and support staff: clients need to ensure they receive “equal” treatment after 12 weeks in a role but this will need minimal adjustment.
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Support staff cost: we already (unlike many agencies) pay TAs and support staff overall in line with permanent colleagues so expect little change.
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We will be keeping a detailed paper trail so clients are fully informed of when 12 week limits are reached.
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We have been and are continuing to work on “comparators” with our clients and will ensure we have the paperwork to show compliance.
- If teachers are to be paid scale rates we will discuss the role fully with the client and be transparent about costs allowing clients the choice.
Concerns
We are awaiting further clarification on a number of areas but are committed to keeping you informed.
For the full regulations see http://www.legislation.gov.uk/uksi/2010/93/contents/made
Jean Wilson
Managing Director
Axcis
Phone: 0800 107 9900 or 020 7580 2956
jean@axcis.co.uk
