Agency Workers Regulations
Qsted Ltd has adopted a compliant stance to Agency Workers Regulations (AWR) in order to limit risk to the schools and academies we supply. The regulations started 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 contract out or ‘opt-out’ of the Regulations and the legislation is clear that all those involved in the supply chain are responsible for upholding fair treatment. Qsted Ltd wants to ensure all our schools and academies are not subject to any unnecessary scrutiny.
The Qsted Key to 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
- Equal Pay
- Duration of working time
- Rest periods and rest breaks
- Annual leave entitlement
The following are excluded from the definition of pay:
- Occupational sick pay
- Loyalty schemes
- Maternity, paternity and adoption pay
- Redundancy payment
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).
- It could be through different agencies, it’s all about 12 weeks with the hirer.
- Qsted 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)
|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 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 Qsted Ltd 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 Qsted Ltd 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) Qsted Ltd requires that the Hirer provides the company with a detailed job specification.
Pregnant agency workers
- Have 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 require 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 Qsted Ltd considers professional contracts to be subject to such potential litigation.
Qsted Ltd will monitor changes to the legislation resulting from anticipated legal test cases. Qsted Ltd 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. Qsted Ltd acknowledge agency workers cannot contract out or ‘opt-out’ of the Regulations and therefore will ensure we are fully compliant.
For more information regarding Agency Workers Regulations please click here