Agency Workers Regulations 2010 (“AWR”) & Teachers
In the period leading up to the publication of the draft AWR guidance, BIS had indicated that it would be preparing specific advice for the teachers and the agencies that supply them. With the final guidance now published it has transpired that separate guidance will not be published and instead there are a few paragraphs in the section entitled ‘Pay’ which links to published pay scales for teachers in the School Teachers’ Pay and Conditions Document (STPCD).
One question that we have been frequently asked in this area is how to deal with teachers’ holidays, as they are normally much longer than in other sectors, and whether the same holidays as are afforded to directly hired teachers must be offered to agency worker teachers once they have completed the 12 week qualifying period.
For the purposes of the qualifying period, where the supply (agency worker) teacher is returning to work with a hirer (be that a Local Education Authority in respect of state schools or an independent school or academy) provided the break between assignments is not greater than 6 weeks (and provided that the supply teacher has not worked for another hirer in between assignments) then any qualifying weeks previously accrued with the hirer can count towards the requisite 12 weeks. Equally if the school is shut down for holidays the qualifying period ‘clock’ is paused for this period and any accrued weeks prior to the holiday are carried over.
Once the qualifying period is achieved the agency worker has the rights to the same basic working and employment conditions (including pay) which are equivalent to those that would have applied had they been engaged directly by the hirer.
Finally it is worth noting that with respect to a teacher who is paid subject to the STPCD, holiday pay is already built into the teacher’s pay rate. A full time teacher is required to be available for work 195 days a year and is required to be available to perform teaching and ‘other’ duties for 190 of these days and may be required to perform ‘other’ duties for the remaining 5. Where the hirer is not a local authority and is not subject to the STPCD an agency should consult with the school.
Lawspeed can advise further on the application of the AWR to agency worker teachers. As professionals there is also the R.3(2) exception potentially available to exclude them from the operation of the AWR entirely, provided the correct form of contract is used.
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