Sincere Education has adopted a compliant stance to Agency Workers Regulations (AWR) in order to limit the risk to the schools and academies that we work with. The regulations came into effect on 1st October 2011. AWR is fundamentally about ensuring contractors are treated fairly in comparison with their colleagues on assignment. The Department of Business, Innovation and Skills (BIS) released Education specific guidelines in August 2011. Agency workers cannot ‘opt-out’ of the regulations and the legislation is clear that all those involved in the supply chain are responsible for upholding fair treatment. Sincere Education wants to ensure all our schools and academies are not subject to any unnecessary scrutiny.
Understanding of Agency Workers Regulations:
Day One Rights
The Hirer must ensure:
(Regulation 12) The right to access collective facilities such as canteen, staffroom, car parking childcare facilities, transport services, and prayer room.
(Regulation 13) The right to be informed by the hirer of relevant vacant posts. There is no obligation on the hirer to employ the agency worker. You can choose how to publicise the vacancy information but supply staff should know where and how to access this information.
Has its own legal identity, defined as follows:
Maintained Schools: Foundation, voluntary aided and foundation special schools, the hirer is the schools governing body Community, voluntary controlled, community special and maintained nursery schools, the hirer is either the LEA or the school’s governing body. Who supervises and directs their work?
Academies: including Free Schools, the hirer is the proprietor (often the trust, the legal entity that has entered into a funding agreement with the Secretary of State)
Independent Schools: the hirer is the proprietor of the school.
Rights after the Qualifying Period:
Duration of working time
Rest periods and rest breaks
Annual leave entitlement
The following are excluded from the definition of pay:
Occupational sick pay
Maternity, paternity and adoption pay
The Qualifying Period
After 12 weeks of qualifying employment with the same hirer, in the same role, agency supply staff will be entitled to the same basic terms and conditions as directly employed staff.
The 12 week Qualifying Clock will be monitored to include breaks/pauses
The weeks do not need to be consecutive, the Clock may be paused for sickness, annual leave, downtime, non term time for schools or for any break in assignment not lasting more than 6 weeks (excluding summer holidays, which do qualify).
Sincere Education will alert after 10 weeks that the 12 week qualify period is approaching so pay can be corrected if necessary.
The qualifying period is best described as a clock that runs from 0 to 12. Please see the table below to explain resets, continued ticking and resets to the clock.
Agency Worker starts a new assignment with a new hirer – Clock Resets
Temporary worker remains with the same hirer but changes role – Clock Resets
There is a break between assignments of 6 weeks or more (not including school holidays) – Clock Resets
Any reason where the break is less than 6 weeks – Clock Pauses
Sickness absence – Clock pauses for up to 28 weeks
Annual leave – Clock Pauses
Workplace closed i.e. school holidays – Clock Pauses
Jury Service – Clock pauses for up to 28 weeks
Industrial Action – Clock Pauses
Pregnancy and maternity related absence – Clock keeps ticking*
The Comparator – The hirer will be deemed to have complied with the regulations on equal treatment regarding basic working and employment conditions if the hirer identifies an appropriate comparator and treats the agency worker in the same manner.
The comparator must be an employee of the hirer.
A comparator needs to be engaged in broadly similar work, but account can be taken of their skills and qualifications as this may justify a higher level of pay for the comparator.
They must work at the same place or, if there is no comparable employee in the same workplace, in another of the hirer’s workplaces.
They will not be a comparable employee if they are no longer employed by the hirer.
The hirer must define to Sincere Education the pay scale on which the teacher would have been appointed had they been appointed directly. It is upon the hirer’s instruction of the suitable comparator that Sincere Education ensures equivalent or greater pay for the capture period of the specified contract, for this purpose the assignment will require a start and end date.
Effective since January 2012, the school will be asked to deem the equivalent comparator required to complete the assignment, whether this is for a one day or a longer term requirement.
The Hirer will need to confirm the pay scales they are working to for teaching and support staff.
For long term assignments (deemed as six weeks or more) Sincere Education requires that the Hirer provides the company with a detailed job specification.
Pregnant agency workers nave the right to be paid when attending ante-natal appointments.
You cannot refuse to accept an agency worker (or terminate and assignment) on the grounds that they are pregnant and may require time off.
Upon written notification of the pregnancy, the regulations the hirer to undertake a pregnancy risk assessment.
Pregnant workers must be offered suitable alternative work, if the current role can no longer be fulfilled. If suitable alternative work is not available, the agency worker is entitled to be paid for the remainder of the expected duration of her assignment.
The Agency Workers Regulations contain ‘anti avoidance’ provisions designed to prevent assignments being intentionally structured to get around the regulations. Schools or agencies that deliberately take action to break the qualifying period could be forced to pay compensation in an employment tribunal of up to £5,000. On this note, Sincere Education considers professional contracts to be subject to such potential litigation.
Sincere Education will monitor changes to the legislation resulting from anticipated legal test cases. Sincere Education has formed its opinion based on legal advice and counsel on the AWR legislation and through studying the Department of Business, Innovation and Skills (BIS) Education specific guidelines released in August 2011. Sincere Education acknowledges that agency workers cannot contract out or ‘opt-out’ of the Regulations and therefore will ensure we are fully compliant.