‘SWEDISH DEROGATION’ CONTRACTS
NUT GUIDANCE FOR SUPPLY TEACHER MEMBERS
SEPTEMBER 2012
This NUT guidance note is intended to supplement earlier NUT guidance on the Agency Worker Regulations (AWR) which came into effect on 1 October 2011.
Introduction
The Agency Worker Regulations 2010 (‘AWR’) have bought in rights to equal pay with directly employed staff after 12 weeks in one assignment. One way that agencies can avoid the obligation to pay equally is to use a Permanent Contract of Employment otherwise known as a ‘Swedish Derogation’ contract.
The ‘Opt Out’
By asking you to sign a ‘Swedish Derogation’ contract your agency is making you ‘opt out’ of the right to equal pay where it offers you a contract that provides that you will receive a minimum payment during periods when no suitable work is available including school closures and periods where no supply cover is required. The ‘minimum’ payment must not be less than 50 per cent of the highest (e.g. weekly) earnings in the previous 12 weeks of the assignment. Although signing this contract would remove your right to equal STPCD pay it would not affect your other rights to equal conditions that are not pay related, for example hours of work.
The NUT opposes the use of this ‘loophole’ but recognises it is lawful under the AWR.
What information should the contract I’ve been offered contain?
The AWR allows agencies to put its agency supply teachers on ‘Swedish Derogation’ contracts as long as the following requirements are met:
· It must be a permanent contract of employment;
· It must contain a term which expressly states that Regulation 5 AWR is disapplied; and
· It must provide that you will receive a minimum payment during periods when no suitable work is available. That ‘minimum’ amount must not be less than 50 per cent of the highest (e.g., weekly) earnings in the previous 12 weeks of the assignment. (Or where the previous assignment lasted for less than 12 weeks, 50 per cent of the highest pay during that assignment). Where the minimum payment is lower than the minimum wage for the number of hours worked, the minimum wage must be paid.
In addition to the above, the following requirements must also be set out in the contract you have been asked to sign:
· The scale and rate of pay or the method of calculating pay;
· The location or locations where you may be expected to work;
· The expected hours of work during any assignment;
· The maximum number of hours of work during any assignment;
· The maximum number of hours of work you may be required to work during each week of any assignment;
· The minimum number of hours’ work per week that may be offered to you provided that it is a minimum of one or more hours;
· The nature of the work you may be expected to be offered including any relevant requirements relating to qualifications or experience.
Please read the contract you have been offered carefully to ensure that all of the above requirements have been met.
Pressure to Sign
We understand that some agencies are telling agency supply teachers that if they do not sign these ‘Swedish Derogation’ contracts then they will be offered no further work. Unfortunately, the AWR provide that as long as the above requirements are met then these contracts are legal and are a valid and lawful tool for agencies to use and so there is little we can do to legally challenge them.
While we believe that members should not be pressurised into signing away their rights to equal pay, we appreciate that in practice if you do refuse to sign such a contract it is possible that your assignment could be terminated early and/or you may not be offered any further work by your agency. Early termination of an assignment is likely to amount to a detriment under Regulation 17 AWR. Agency workers are protected from detrimental treatment for refusing to forego their rights under the AWR, this would include refusing to forego their rights to equal pay after 12 weeks. However, this could be difficult to prove if, for example, the school say that the reason for early termination was because of financial issues not because an agency supply teacher tried to assert their rights. If your assignment is terminated early as a result of you refusing to sign a ‘Swedish Derogation’ contract we would consider whether this was victimisation leading to detriment treatment.
An agency could also refuse to offer an agency supply teacher any further work after the end of their current assignment if they refuse to sign a ‘Swedish Derogation’ contract. This is also likely to amount to a detriment under Regulation 17 but it could also be difficult to prove why an agency refused to offer any further work to an agency supply teacher particularly in the current economic climate where teaching jobs are scarce. If you are refused further work as a result of you refusing to sign a ‘Swedish Derogation’ contract we would consider whether this was victimisation leading to detriment treatment.
Whether or not to sign the ‘Swedish Derogation’ contract you have been offered is a decision only you can make but we do understand that you may have difficulties in refusing to sign it. On one hand, the contract gives you employee status, and a defined minimum payment when no suitable work is available but with no right to equal STPCD pay. On the other hand if you refuse the contract offered, you would retain the right to receive equal STPCD pay after the 12 weeks qualifying period but risk the agency not giving you any further work.
It should also be noted that although the contract provides for minimum pay during weeks where no work is available, there is no requirement for the agency to pay this indefinitely. The regulations allow an agency to terminate the contract after an aggregate of 4 such weeks. Please consider these facts carefully when making your decision.
Potentially Unlawful Terms in the Contract
We are also aware that some agencies are offering ‘Swedish Derogation’ contracts which do not meet the above requirements, or have additional ‘suspicious’ terms which may be unlawful e.g.
· There may be a ‘lay off’ clause;
· The contract makes assertions that school teachers lie outside the scope of the AWR because they are ‘professionals’;
· There is no provision for minimum pay during periods where no work can be found, or the provision doesn’t meet the amount specified above.
Where there is a potentially unlawful term within the contract we may be able to challenge the legality of the contract.
When should the contract start?
The AWR state that a ‘Swedish Derogation’ contract should start “before the beginning of the first assignment under that contract”, so where an agency tries to introduce this type of contract part-way through an existing assignment the NUT’s view is that the agency is effectively breaching the regulations.
If you are offered and sign a ‘Swedish Derogation’ contract part way through an existing assignment the exclusion from the right to equal pay will not apply until the beginning of your next assignment.
Summary
A ‘Swedish Derogation’ contract which complies with the law must be a permanent contract of employment between you and the agency. After 2 years qualifying service you would become an ‘employee’ of the agency and after qualifying service you would acquire employment rights not to dismissed unfairly just as any other employee.
If you sign a ‘Swedish Derogation’ contract, you should remember that:
· You would be entitled to minimum and maximum pay and hours.
· You would be entitled to be paid between assignments up to an aggregate of 4 weeks at a rate of 50 per cent of his salary over the past 12 weeks.
· You would not be entitled to equal pay after 12 weeks on the same assignment with the same hirer.
· A ‘Swedish Derogation’ contract is not like an ordinary permanent contract of employment. The nature of the work is far less secure as it depends on available assignments.
· If no suitable work is available for an aggregate of 4 weeks, the agency may terminate your contract. The 4 weeks do not have to be consecutive – they can be accrued at any time during his employment.
If you are particularly concerned about a certain term contained in the contract you have been offered, please do not hesitate to contact us.
You can look us up on the NUT website, which has a map showing all our regions. If you click on your region, you will find a list of local associations and their email addresses.
http://www.teachers.org.uk/node/10464
Alternatively you can use the telephone numbers below:
NUT membership enquiries
Tel: 0845 300 1666
Instant membership hotline
Tel: 0845 300 1669
ECR
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