The Agency Worker Regulations came into force on the 1st October 2011. The regulations are in place to give agency workers the same entitlement to basic employment and working conditions as if they had been employed directly, after the qualifying period.
There are two main elements to the Agency Worker Regulations:
Day One Rights
Day One Rights are the rights an agency worker has from the first day of an assignment. This includes ensuring that an agency worker has the same access to facilities. This would include staff canteens, childcare, transport and parking. This means an agency worker is entitled to nothing more than a permanent member of staff. For example, if there is a waiting list for parking, the agency worker is entitled to join the waiting list. However, they are not automatically entitled to a parking space.
After completion of the 12-week qualifying period
Agency workers, once completing the qualifying period, are entitled to equal treatment. This includes pay and other basic working conditions, such as annual leave, rest breaks and paid time off for ante-natal appointments.
Equal Treatment and Pay Parity
Agency Workers are entitled to equal pay, or in other words the same pay as a permanent candidate doing the same role for the same hirer. Before the twelfth week of an assignment, your agency will get in touch to ask questions around pay parity to ensure they are paying the teacher correctly.
4myschools will send you something similar to the below:
In accordance with the Agency Worker Regulations; we are writing to notify you that this teacher is approaching their 12 weeks service with your school. Once their assignment extends beyond 12 weeks they will be entitled to equal treatment and to be engaged on the same terms and conditions as the hirer would have engaged the teacher if they had taken the teacher on directly.
Please can you confirm, if you had hired the teacher directly, what pay scale or daily rate would you pay this teacher, considering their qualifications for the role in question? For your reference, their last permanent pay scale was………..
When you, as the hirer, has confirmed what pay scale or daily rate you would pay the teacher if employed directly, 4myschools will ensure that the teacher is paid the equivalent daily rate. If this is more than they are currently being paid then we will adjust the charge rate to the school, passing the difference on to the candidate to ensure both the school and 4myschools are compliant with Agency Worker Regulations.
Agency Worker Regulator – Test Case:
There has now been several employment tribunals with regards to AWR compliance and the underpayment of salary to an agency worker. One case in education was that the hirer (the school), and not the agency, was liable to pay compensation to the agency worker for failure to pay her at the rate she should have received under equal treatment.
Both the agency and the hirer (the school) are potentially liable for a breach of the Agency Worker Regulations as they could both be seen as being respectively responsible for the breach. However, the agency can avoid liability if they have taken reasonable steps to obtain the information specified in the Regulations for equal treatment. In this case, the agency avoided liability as they had not received the specified information from the school and were able to demonstrate repeated requests for such information.
In this case, the tribunal held that the hirer (the school) was solely responsible for the infringement of the Agency Worker Regulations. The tribunal considered the evidence that the agency had repeatedly requested the relevant pay parity information from the school to comply with the Regulations and had not received such. The tribunal also found that it would not have been possible for the agency to pay the teacher a higher rate as the margin was not sufficient and therefore, the school were held liable to pay compensation to the teacher. In this case, the compensation, being the gross pay she was underpaid, was over £10,000.
Frequently Asked Questions
What happens if a teacher works at my school for two weeks, but then goes and works at another school? Does the clock reset?
- If a candidate works at your school for two weeks, then goes to work for another school for 6 weeks or less before returning to you, their clock would be paused, and the next working day would be the start of week 3. However, if the second school is part of the same hirer like an academy trust the clock would continue.
- If a candidate works at your school for two weeks, then goes to work for another school for 6 weeks or more before returning to you, then yes, the clock would reset, unless the second school is part of the same hirer
- The important factor is the amount of time between the weeks worked under a hirer in the same role.
A teacher came to me for half a day. Does that count for their clocks or do they have the work the whole week?
- Any time working at the school will count towards their clock. Simply working an hour a week would be enough to continue an AWR clock.
You have told me that the teacher in my school was paid UPS3 in their previous role. Do I have to match it?
- Not if your pay policy says you do not do this for your directly employed staff. Agencies will be giving you the information about previous pay scales as a guide.
- You need to use your schools pay policy to review the candidate rights and establish what you would pay for the specific role they are in. For example, some schools choose to state in their pay policy that supply teachers employed by agencies will be paid only to main pay scale, not the upper pay scale, as they won’t be taking on any whole school responsibility or leadership roles.
- Each candidate within each school needs to be looked at individually.
Can I stop using the teacher for 6 weeks to make the pay go back to normal?
- Regulation 9 of the Agency Worker Regulations seeks to prevent hirers and agencies from manipulating the qualifying period in a way that would prevent agency workers securing equal rights under the AWR.
- Schools found to be rotating supply teachers and agencies found in breach of the anti-avoidance provisions are equally culpable. Employment Tribunals are able to award joint liability in cases where schools have worked with agencies to breach AWR. Compensation may be offered to cover the loss of benefits and expenses (see the previous test case). Furthermore, a tribunal may also award a fine of £5000 to any party found guilty of anti-avoidance provisions.
4myschools and Agency Worker Regulations
If you have any questions about the Agency Worker Regulations, please don’t hesitate to get in touch. Your local recruitment consultant will be happy to run through all the guidance with you.
Furthermore, 4myschool are audited by the Recruitment and Employment Confederation (REC) and hold Audited in Education status. This demonstrates our compliance with recruitment legal obligations including AWR. The REC have produced their own guidance on the Agency Worker Regulations and specifically guides for schools.
You can find their guidance here: https://www.rec.uk.com/legal-resources/factsheets-and-guides
The REC has also developed a useful booklet for schools. This helps them to know how best to use agency workers in their schools called Putting Children First
Please don’t hesitate to get in contact if there is anything further 4myschools can help you with.