Wednesday 13th July 2011
The Government will be implementing the Agency Workers Regulations 2010 from 1 October 2011. All schools and colleges that use agency workers after that date need to be aware of the regulations and to take account of them when planning for next year. In particular, the financial implications may have a destabilising influence on budgets.
The regulations are about agency workers who choose to work for an agency that places them in other businesses. They do not cover truly self-employed workers. The fundamental factor is that the business in which they are placed has no contractual relationship with those workers and they have no claim against that business for unfair dismissal, for example, even if that business were to demand that they were removed for no good reason at a moment's notice. Similarly, at present, the wages and benefits they receive are decided, and paid, by the agency and need have no relationship to the wages and benefits received by permanent workers in the business.
The new regulations will change much of this. From day one an agency worker will have the same rights to apply for jobs in a school or college as permanent staff and access to all facilities. After 12 calendar weeks the worker must receive the same conditions as any permanent member of staff including pay, duration of working time, rest periods and rest breaks and annual leave. It does not include pensions, occupational sick pay, maternity, paternity or adoption pay, redundancy or other payment on termination of employment; expenses, or in most cases bonuses.
The DfE has promised to issue guidance in May. In the meantime, it is clear that in some cases the greatest change will be that teachers will receive the pay that they would have received if they had been in permanent employment. Even if this only means that a teacher is paid at the top of main scale, one group has estimated that it could raise the overall cost of agency workers by 25 per cent.
It is important for community and voluntary controlled schools to remember that for them, the employer is the local authority. Case law suggests that if an agency teacher works for seven calendar weeks in one community school and then five weeks in another in the same LA, the 12 calendar weeks qualifying time will be made up. A break in employment must be for at least six weeks to break continuity and there is case law to suggest that a period when the employer cannot offer work (such as a summer holiday) may not count as a break.
May 2011
Pam Langmead