Written by Admin | 29 Jun 2022
Summary
The Agency Workers Regulations 2020 came into force on 1st October 2011 and cover the supply of staff by employment agencies to hirers.
Introduction
The Government has recently provided additional information regarding the summer schools guidance on their website: Summer school guidance (
publishing.service.gov.uk). This states that summer schools have been chosen because summer school provision with an academic focus has the potential to support attending pupils to make up for some of their missed education. “The Education Endowment Foundation (EEF) finds that, on average, pupils attending a summer school can make up to 2 months’ additional progress (compared with pupils who do not attend), and up to 4 months if the summer school offers small group tuition led by highly-trained and experienced teaching staff.”
Does it mean that the agency worker becomes an employee of the School?
An agency worker is someone who:
- Has an employment contract or an agreement to provide services personally for an agency
- Is temporarily supplied to a hirer by the agency
- Is subject to the supervision and direction of that hirer when working on an assignment
- Is not in a business on their own account i.e., self employed.
Example 1:
A School has a canteen managed by an in-house catering manager employed by the School. One of the School’s employed catering staff is off sick and is replaced by a worker supplied by an agency. During her assignment the worker is supervised and controlled by the hirer’s catering manager. She fits the definition of an agency worker and the School must comply with the regulations.
Example 2
Another School contracts out the management of its canteen and staff are supplied by the contractor. The contractor manages the entire operation of the canteen and is responsible for the direction and control of its own catering staff. Although they are working on the School’s premises, the School is not the hirer for the purposes of the regulations. If one of the contractor’s staff is off sick and the contractor engages agency staff then the contractor, not the School, is subject to the regulations.
Are there any workers who are outside of the scope of the regulations?
Workers not covered by the regulations include:
- Workers who find work through a temporary work agency but are in business on their own account i.e., self-employed people
- Workers introduced by an employment agency to employers for casual, temporary or permanent employment
- Supply teachers on a “Supply Teacher Approved List” who are employed on a casual basis and paid directly on the school’s payroll fall into this category
- Workers on secondment or loan from one organisation to another.
Do the agency workers (temps and supply teachers) get employment rights under the regulations?
They get some rights from day one of engagement and some rights after 12 weeks. These are set out below. They never automatically become employees of the School and have to apply for any job vacancies in the usual way. They also have rights under other legislation such as the Equality Act 2010.
What are day 1 rights under the regulations?
If you hire agency workers, you must ensure from the first day of their assignment that they have:
- Access to your facilities (such as canteen, childcare facilities, parking, etc.)
- Information on your job vacancies from the first day of their assignment. However, agency workers have no preferential entitlement over jobs in comparison with any other applicants. This is not a right to special treatment. For example, if a crèche is full and any contracted employee has to go on a waiting list, this will also apply to the agency worker.
What are the rights after 12 weeks in the same job?
There are entitlements to equal pay and other basic working conditions (annual leave, overtime, etc.) which come into effect after an agency worker completes a 12 week qualifying period in the same job with the same ‘hirer’.
Are there entitlements for pregnant agency workers after 12 weeks?
Yes. After completing a 12 week qualifying period, a pregnant agency worker will be allowed paid time off to attend antenatal medical appointments and antenatal classes when on assignment. If the School identifies a risk, the School will need to make an adjustment if it is reasonable. If it is not reasonable, the agency should offer alternative suitable work if available, where the agency worker will be paid at the same rate until the end of the assignment. If alternative work cannot be found, then the pregnant woman will have the right to be paid by the agency for the remaining expected duration of the original assignment.
What does the “12 week rule” mean for our School?
If you are a hirer of agency workers and you engage “temps”, or supply teachers from a supply teacher agency, then you will need to provide the agency with an up to date written statement, after the worker has been working for 12 weeks in the same assignment with you, about your terms and conditions of employment for equivalent employed staff. The agency must ensure that an agency worker receives the correct equal treatment. For the great majority of Schools, supply teachers will, therefore, have to be paid by the agency in accordance with the School Teachers Pay and Conditions Document. For other Schools, such as Academies, Free Schools and Independent Schools the pay rate will be whatever is in place for equivalent contractually employed workers.
How is the 12 week qualifying period calculated?
The 12 week qualifying period is triggered by working in the same job with the same hirer for 12 calendar weeks. Calendar weeks will be accrued regardless of how many hours the worker does on a weekly basis. Therefore, even if the agency worker is on assignment for only a couple of hours a week, it will still count as a week and they will still be entitled to equal treatment after 12 calendar weeks. There are additional rules where the clock “pauses” or “re-starts” – see below.
What can make the clock “pause” or “re-start” or “keep on ticking”?
If there is a break of 6 weeks or more between assignments with the same hirer, then the qualifying clock will re-start except where the absence is for one of the reasons below, in which case the clock “pauses” or in some instances “keeps on ticking”:
- Sickness
- Beyond the control of the agency worker such as workplace closure, e.g. school holidays and industrial action
- Annual leave
- Jury service
- Pregnancy and maternity-related absence
- Statutory maternity, paternity or adoption leave If there is a break of less than 6 weeks between assignments or during an assignment, the clock will “pause” and restart when the agency worker returns to the role
What about Community Schools where the Local Authority is the overarching employer?
If an agency worker, e.g., a supply teacher moves from one assignment to a separate assignment with another School in the same Local Authority (LA), as the LA is technically the hirer, the 12 week qualifying period continues. If the supply teacher moves to a different LA (or to an Independent School, Academy or Free School which is a separate legal entity), the qualifying period will start again.
What about Multi Academy Trusts where the Trust is the overarching employer?
If an agency worker, e.g., a supply teacher moves from one assignment to a separate assignment with another School in the same Multi Academy Trust, as the Trust is technically the hirer, the 12 week qualifying period continues.
Does a worker have to be paid in relation to their qualifications?
No. It is up to the hirer, i.e., the School to determine what job is to be done.
Example
If a School asks an agency to provide a Cover Supervisor or a Teaching Assistant, then the person engaged to do the work will be expected to supervise pupils in carrying out a pre-prepared exercise, even if they are a qualified teacher. The rate of pay would reflect the supervisory role and they would be paid as a Cover Supervisor and not as a qualified teacher. However, if the School asks an agency to provide a qualified teacher whose role will be to actively teach pupils (refer to the Education Regulations (Specified Work and Registration) (England) 2003), the teacher should be paid as a qualified teacher. After 12 weeks in the same role with the same hirer, a qualified teacher in a Maintained School carrying out teaching duties must be paid on their appropriate pay scale point as set out in the School Teachers’ Pay and Conditions Document. Are there any other issues? Yes. There are various situations where you have a statutory obligation to provide information to employees and their representatives about the employment situation at your School. The School will now need to include information about the School’s use of agency workers in redundancy situations and Transfer of Undertakings (TUPE) situations. The information must be provided to employees or their representatives and must include:
- The total number of agency workers engaged
- The areas of the business in which they are utilised
- The type of work they are contracted to undertake
This will apply where a School changes its status, e.g., to an Academy or where a group of workers are contracted in or out, e.g., catering or cleaning.
Has the government produced any guidance on the regulations?
Yes. The Department for Business Innovation and Skills has produced guidance which can be accessed at this link:
Agency Worker Regulations Guidance.