What Do the Agency Worker Regulations Do?

This NUT guidance note provides practical advice for NUT supply teacher members onthe Agency Worker Regulations 2010 (AWR).

What do the Agency Worker Regulations do?

TheRegulations aim to ensure agency workers are treated similarly to directly employed colleagues doing the same type of work. Their protection is however limited - they require 12 weeks’ continuous engagement for some rights (in particular the right to be paid equally) and they apply only to basic terms of employment.

The NUT wants to ensure that supply teacher members know their rights and that agencies do not evade or restrict the effect of the Regulations. This document gives you a brief guide to the AWR and their impact on your rights as a supply teacher. Although the guidance refers throughout to ‘schools’ it applies in the same way to supply teachers working in academies or colleges.

Are all supply teachers covered?

The term ‘agency worker’ applies to you if you are engaged by an agency who finds you work at a school and you are paid by the agency rather than directly by the school. The DFE’s guidance on the AWR and supply teachers makes it clear that the AWR apply to agency supply teachers and cannot be avoided on the basis that the relationship between the school and the teacher is a “business to business” relationship outside the scope of the Regulations.

The Regulations do not, however, apply to you if the agency just introduces you to a school which then itself gives you an employment contract (whether that is fixed term or short-notice). Neither does it apply to you if you are part of a local authority ‘pool’ and are employed and paid by theauthority or a school, or if you are engaged and employed by a school directly.

The Regulations also provide that the right to be paid equally does not apply to agency workers who have a “permanent contract of employment” with the agency (see below).

The DfE guidance states that agency teachers employed by an umbrella company are still covered by the full provisions of the AWR, unless they have signed a ‘permanent contract of employment’ with the agency.

What are the rights under the regulations?

There are two groups of rights.

Day 1 Rights –From day 1 of an assignment, the hirer(ie theschool) must provide you with equal access to collective facilities and amenities which are already provided for other employees eg:

• access to facilities e.g. canteen facilities, prayer room, staff common room, mother and baby room, etc.;
• access to transport facilities e.g. local pick-ups;
• access to any car parking facilities;
• access to permanent vacancies.

Rights after 12 Weeks – After 12 weeks in the ‘same role’ with the ‘same hirer’ (see below), theagency will be responsible for providing you with the same basic pay and conditions as you would have received if you had been employed directly by the school, eg:

• the basic pay rate (the same rate as is paid to teachers in similar roles in the same school);
• hours of work, rest breaks, lunch breaks, etc.;
• holiday entitlement (included in the daily pay rate payable by schools which are covered by the STPCD - see below);
• access to statutory sick pay/maternity pay (but not occupational schemes – including pensions, redundancy pay, etc.);
• paid time off for ante-natal appointments, and alternative work should a risk assessment require this.

Theschool also has responsibilities under existing health and safety legislation in regard to supply teachers in any event.

What rates of pay are payable to supply teachers under the AWR?

Regulation 5 of the AWR provides that after the 12 week qualifying period, you should be provided with the same basic terms and conditions ‘as if you had been recruited directly by the hirer’.

Local authority maintained schools are required to pay teachers according to the provisions of the School Teachers’ Pay & Conditions Document (STPCD). Although the STPCD no longer sets out fixed pay points for teachers on the Main and Upper Pay Ranges, most schools still includefixed pay scales in their schoolpay policies. Academies are not obliged to follow the provisions of the STPCD but most academies do so andalso set out fixed pay scales in their pay policies.

The STPCD now allows schools to decide for themselves how much they will pay newly appointed teachers - they do not have to pay newly appointed teachers at the same pay rate or pay point as in their previous school. Again, the school pay policy should set out how newly appointed teachers’ pay is determined, with many policies providing that previous pay entitlements will be maintained.

Finally, the school pay policy may have a specific section onpay for supply teachers employed directly by the school. The STPCD requires that this is 1/195 of the annual pay rate which would apply if the teacher was appointed on a permanent basis.

After the 12 week qualifying period, therefore, you should be paid the same pay rate as if employed directly as a supply teacher and, in schools and academies which follow the provisions of the STPCD, this should be a daily rate of 1/195 of the pay rate which would apply if appointed on a permanent basis.

The pay rate should not be at the minimum point of the pay scale - it should be at the point which would have applied if you had been employed directly (and in schools and academies which follow the terms of the STPCD) if you had been appointed on a permanent basis. Consequently, if the pay policy provides for previous pay entitlements for experience to be maintained, that should be reflected in the pay rate under the AWR.

Schools are increasingly asking agencies to provide ‘cover supervisors’ whose roles do not include ‘specified work’ and who are therefore paid less. In circumstances where you are not undertaking specified work, there is no right to be paid the same rate as a teacher regardless of the fact that you are a qualified teacher.

Who is the “hirer”?

The definition of the “hirer” is important because when you move between schools where the hirer is the same body, this does notbreak or stop the clock on the qualifying period provided the role is not a substantively different one.

The Regulations define the hirer as the person responsible for the 'supervision and direction’ of the worker. The DfE guidance states that in foundation and voluntary aided schools,the hirer will be the school governing body, while in community and voluntary controlled schools, the hirer is either the local authority or the school's governing body depending on the circumstances. In academies, including free schools, the hirer is the proprietor of the school i.e. the academy trust.

Regulation 9 also defines‘connected’ hirers, in anattempt to stop hirers and agencies deliberately moving agency workers around in order to prevent them acquiring AWR rights. Connected hirers are defined as hirers who are either directly or indirectly ‘controlled’ by another.

This means that supply teachers working in various local authority maintained schools in the same local authority area, or working in variousacademies or free schools under the same academy trust, can acquire AWR rights despite moving between schools.

The NUT argues that the local authority should be regarded as the hirer in community and voluntary controlled schools, enabling all continuous periods of work in such schools to be aggregated for the qualifying period. The NUT also argues that all local authority maintained schools within the same authority should be regarded as ‘connected hirers’, again enabling continuous periods of work to be aggregated for the qualifying period.

If you think your agency is deliberately rotating you between schools in order to break your continuous service, or stopping you building up 12 weeks’ service, you should contact the NUT locally (see below). Similarly, if you are being told by your agency that you are ‘changing roles’ within the same school, but in fact you are doing the same kind of work, this may also be an avoidance tactic and you should get advice.

What is the ‘same role’?

The 12 weeks’ work must be undertaken in the same role. A role will be considered the ‘same’ role unless it involves a substantially different type of work. The agency must send written notification to you if it intends to move you to a ‘new’ role. However, all classroom teaching is substantively the ‘same’ role for the purposes of the Regulations.

How is the 12 week qualifying period calculated?

The 12 weeks must be continuous, although certain types of ‘breaks’ will not interrupt continuity by stopping the clock altogether, only ‘pausing’ it. Other breaks allow the clock to continue without pausing despite the interruptions. There are no minimum hours to be worked in a week, so any work done in a particular week means that that week will count.

The following types of break will only ‘pause’ the clock:

• any break for any reason up to 6 weeks;
• school holidays or other school closures;
• up to 28 weeks’ sickness absence or jury service.

The Regulations also allow for the clock to be paused for a combination of the above reasons.

If you are on maternity, paternity or adoption leave, these weeks all count towards qualification, so the clock continues ticking during the length of your assignment.

Any other break of more than 6 weeks will have the effect of re-starting the clock at zero for the purpose of the 12 week qualifying period.

What about agency teachers who have ‘guaranteed work contracts’ with their agency?

The Regulations provide that the right to equal pay after 12 weeks does not apply to agency workers who have a particular kind of contract with theagency. These are known variously as “guaranteed work contracts”,“permanent contracts”, “pay between assignment contracts” or “Swedish Derogation contracts”.

The contract must contain a term expressly stating that Regulation 5 AWR is disapplied, and more importantly it MUST provide that you will receive a minimum payment during periods when no suitable work is available.

Read the separate NUT guidance for supply teacher members on“guaranteed work contracts” with supply agencies

What about rights for pregnant workers?

All agency workers are covered by health and safety legislation from day one at work. Once your hirer or agency knows that you are pregnant, you are protected from pregnancy discrimination at work, under the Equality Act 2010.

The Regulations provide that if you are pregnant and you have completed the 12 week qualifying period and are unable to complete the assignment for maternity related health reasons, you also have the right to be offered a suitable alternative assignment by the agency. The alternative assignment should last for the same duration as the original, and should be on no less favourable terms and conditions. If no such assignment can be found, the agency should suspend you on full pay for the duration (or likely duration) of the original assignment. There is also a right to paid time off for ante-natal appointments during assignments.

For most agency workers, these above rights under the AWR are only acquired after the qualifying period has been completed. However, if you have an employment contract with the agency, they will then apply to you from day one of that employment.

What if my school or agency does not give me these rights?

Use the contact information at the end of this document to obtain information on how to contact the NUT for advice and assistance.

If you think you are not being given Day 1 rights ie equal access to collective amenities in the school you are working, or you have not been notified of permanent job vacancies, the Regulations provide that you can request certain information from the school about why you have been treated in that way.

Likewise, if you believe you have completed the qualifying period and should have been given Regulation 5 rights to equal pay and conditions, you have the right to ask the agency (and, if the agency does not respond, the school)why you are not being treated accordingly. There are NUT template letters to cover both these situations in appendices I and II. However, we strongly recommend that you seek advice and guidance from the NUT before using them.

The school must respond to you about Day 1 rights within 28 days. The agency must respond to you about Regulation 5 rights within 28 daysand, if the agency does not respond within that time, you can then send the same letter to the school which should also respond within 28 days.

Failure to reply to any of the Regulation 16 requests above is not in itself a breach of the Regulations, but a tribunal can draw adverse inferences from any such failure, or from evasive or equivocal responses.

You should also contact us if your agency has told you that you are not covered by the AWR for any reason, or has given you an employment contract that says you will not get Regulation 5 rights.

Complaints can be made to the representative trade associations REC and APSCO about supply teacher agencies which are members of those bodies. They may issue warnings to the agency and ask it to take appropriate action and can ultimately exclude agencies from membership.

What if the hirer or agency treats me worse after I have asked about my rights?

You have the right not to suffer detrimental treatment by the hirer or the agency because you have raised issues (in good faith) about your legal rights under the AWR. It will be an automatic unfair dismissal for an agency to dismiss its employee for such a reason.

What can an employment tribunal do?

If a tribunal finds that there has been a breach of the Regulations it can make an award of compensation to cover any loss of benefit or expenses you have sustained due to the breach. The minimum award is 2 weeks' pay, but if the tribunal finds there has been a deliberate attempt to ‘evade’ the Regulations it can make an additional award of up to £5000. The award can be made against the school or agency depending on where the tribunal feels the responsibility lies. The tribunal can also recommend the school or agency takes specific action to rectify any breach of which it has been found guilty.

There is a three month time limit for lodging a claim in the employment tribunal. That time limit will run from the date of the breach. For Day 1 rights, that is the date the school refused to give you access to collective facilities or employment vacancies. For Regulation 5 rights, it will probably be the date you qualify for those rights (i.e. when you complete the 12 week period). If you are bringing a claim for victimisation the time limit will run from the date of any detrimental treatment received.

Don’t forget, in addition to the rights under the AWR, you are still protected by existing discrimination law and health and safety legislation from day one of any assignment.

USEFUL LINKS

DfE guidance on the AWR and supply teachers:

General BIS guidance on the AWR:

CONTACTING THE NUT / GETTING INVOLVED

If youneed further advice, please contact the NUT representative in your school in the first instance.

NUT members in England requiring individual advice and support should in the first instance contact the NUT AdviceLine on 0203 0066 266 or (open from 9 am to 7 pm). Members in Wales can contact NUT Cymru on 029 2049 1818 or .

You can join the NUT on-line at or on 0845 300 1669. You can make enquiries about your own membership on 0845 300 1666.

The NUT wants supply members to work together and with NUT members locally to take forward our work for supply teachers. Contact the NUT locally to find out how you can take part in your local NUT association. You can find contact details on your membership credential or on the NUT website at

National Union of Teachers

August 2015

APPENDIX I

(a) Model letter for you to send to the hirer when you believe you have not been given access to collective facilities.

Please feel free to amend the text according to your specific circumstances.

Dear [hirer]

This is a request for information under Regulation 16 - of the Agency Worker Regulations 2010 (‘AWR’).

[outline why you believe there has been a breach of Regulation 12 (right to equal access to collective facilities)]

Please can you provide me with the following information within 28 days of the date of this letter.

1. All relevant information relating to the rights of teachers within your workforce to use the above mentioned collective facility/amenity

1. The reasons why I have received the treatment outlined above and been denied access to that collective facility.

Please note that whilst you are not legally obliged to respond to this request, if you fail to respond, or if your response is evasive or equivocal, an employment tribunal will be entitled to draw any inference that it considers just and equitable to draw.