Please note: NASUWT Advice to Members

Protection Against Victimisation Regulation 17 provides protection against victimisation where agency workers have asserted their rights or made allegations (in good faith) that the Regulations have been breached. It would be an automatic unfair dismissal to dismiss an agency worker who is an employee for this reason alone, or principally for this reason.

Enforcing Rights and Entitlements All workers have the right not to suffer detriment for enforcing their rights, as set out in Regulation 18 (4). Tribunal claims should be brought within the usual 3 months less one day deadline from the date of the breach.

Anti-avoidance Provisions R9 seeks to prevent ‘hirers’ and employment agencies manipulating the qualifying period in a way that will prevent agency workers securing equal rights under the AWR. Some ‘hirers’ and employment agencies may seek to avoid their obligations by only hiring workers for a period of less than 12 weeks. However, where workers are moved around ‘connected’ hirers, (e.g. the same LA, a MAT or independent school chain operated by the same employer) or have frequent ‘breaks’ between assignments without good reason, then they can still rely on the AWR.

Schools rotating supply teachers and agencies found in breach of the anti-avoidance provisions are equally culpable. Employment Tribunals are empowered to reach a verdict of joint liability in cases where schools have colluded with agencies to breach the AWR. Compensation may be offered to cover the loss of benefits and expenses resulting directly from the breach. A Tribunal may also award an additional sum of up to £5,000, (increasing to £20,000 in 2020).

Tribunal Cases

Two recent Tribunal cases involving AWR were found in favour of the Supply Teachers’ entitlement to parity pay in accordance with STPCD:

  • –  Steven vs Northolt High School 2014
  • –  Rabia Ali vs Cassidy Education Ltd 2018NASUWT Tel: 03330 145550 E-mail: advice@mail.nasuwt.org.uk

AWR Fact Sheet

Many supply teachers
entitlement to parity pay.
the same role, for the same Hirer in accordance with AWR definition.

There appears to be misinformation regarding what is the same role, who the Hirer is, the 12-week qualification period, and parity pay entitlement.

Below are definitions of Same Hirer, Same Role, 12-Week Qualifying Period and Parity Pay Entitlement from multiple sources including Gov/DfE, NASUWT and ACAS.

Who is the same ‘Hirer’?

The NASUWT has argued successfully that where schools are maintained by the same local authority (LA), then the LA should be deemed the ‘hirer’ or ‘connected hirer’ and agency supply teachers moving between LA schools should not break their qualifying period unless taking up a substantially different role. Similarly, where schools are within, for example, the same MAT, then continuity of employment is not broken, and the 12-week qualifying period would not have to restart.

GOV.UK DfE definition:

Community schools are maintained schools which do not fall into more specialised categories such as foundation school, pupil referral unit, voluntary aided or voluntary controlled school.

Maintained schools are schools funded by a local authority. They have to follow and are regularly inspected by Ofsted. They generally follow the local authority’s rules on admissions, special educational needs and exclusions. Maintained schools are overseen by governors and are held to account by their local authority.

https://www.compare-school-performance.service.gov.uk/

What is the ‘Same Role’?

The 12-week qualifying period must be spent in the same role. A role will be considered the ‘same role’ unless it involves a substantially different type of work. In order for the 12-week qualifying clock to be reset to zero, the ‘hirer’ must notify the employment agency that the work or duties have changed, and this information must be confirmed in writing to the agency worker (Regulation 7 (3)). The NASUWT and NEU considers that all classroom teaching conducted by a supply teacher would be the same role irrespective of the subject and the age range of the pupils being taught in any school.

Calculating the 12-Week Qualifying Period

A week runs for 7 days from the day on which the assignment began. So, if the assignment began on a Wednesday, the week would finish on the following Tuesday.

An agency worker will accrue a week towards the qualifying period:

  • for any week in which they do any work in the role
  • if they are unable to work due to pregnancy, childbirth or maternity breaks whichtake place during pregnancy and up to 26 weeks after childbirth
  • if they are unable to work due to paternity leave, adoption leave or sharedparental leave.The 12-week qualifying period will pause for:
  • breaks from the role that last for 6 weeks or less
  • sickness-related absence (that lasts for 28 weeks or less)
  • annual leave
  • workplace shutdowns – e.g. for Christmas or industrial action
  • jury service (that lasts for 28 weeks or less).The 12-week qualifying period will start again for:
  • any new role
  • the same role after a break of 6 weeks or more
  • the same role after 28 weeks’ sickness-related absence or jury service.http://www.acas.org.uk/index.aspx?articleid=6493

Parity Pay Entitlement

Under the AWR, after 12 weeks in the same role with the same school or LA, an agency supply teacher is entitled to the same pay and conditions of employment as teachers employed by the school/LA.

The Role of the Hirer

If a school hires a temporary agency worker through an agency, they should provide the agency with up to date information on their terms and conditions so that they can ensure an agency worker receives correct and equal treatment as if they had been recruited directly, after 12 weeks in the same job. https://www.gov.uk/government/publications/employing-agency-supply-teachers

The relevant rate of pay is determined by the nature of the job. If a school requests an agency to provide a qualified teacher to carry out ‘specified work’ teaching, then they should be paid as a teacher and not a Cover Supervisor or a Teaching Assistant. ‘Specified work’ includes planning, preparing and delivering lessons and courses to pupils and assessing and reporting on the development, progress and attainment of pupils.

After the qualifying period of 12 weeks, teachers should receive the same rate of pay as directly recruited teachers (on the same pay point). In LA maintained schools, teachers should be paid in accordance with the STPCD. For an agency supply teacher, this would usually be the rate of pay that they would have received had they been employed directly by the school as provided for in the STPCD. MATs, stand-alone academies, free schools, trust schools and independent schools are free to set their own pay scales and conditions of service. Agency supply teachers in these schools should expect to be paid the same as teachers undertaking similar work and having a similar level of skills and experience. NASUWT Guidance on the AWR

Complain about pay and work rights. Use the online form if you have concerns about an employment agency eg.

• Holiday pay
• Non-payment
• Contractual concerns

https://www.gov.uk/government/publications/pay-and-work-rights-complaints?

Samina Randall

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samina@transposesupply.uk