Most schools will have some kind of ongoing relationship with supply agencies. Typically, supply workers will be employed by the agency and paid on the basis of placements fulfilled (signed timesheets being required to evidence work undertaken). Whilst the agencies are able to benefit from the Government’s Coronavirus Job Retention Scheme, there is an expectation that public bodies continuing to be in receipt of public funds will continue to pay for agency workers notwithstanding the closure of the school (see Procurement Policy Note 02/20 – Supplier relief due to COVID-19). For those on long term supply, this would seem appropriate and as the school will have budgeted for this cost, no reason for schools not to honour the arrangement. Schools have a legal duty under the Agency Workers Regulations 2010 not to treat agency workers less favourably than employees. However this duty only arises once an agency worker has been working at the school for a qualifying period of 12 weeks.
Agency workers who continue to be paid and treated as staff should be asked to work from home if possible, provide work for pupils if a teacher and to contribute to any roster designed to provide staffing cover whilst the school remains partially open. Agency staff should also be prepared to be redeployed where the school (or indeed academy trust) may need them.
The situation for agency workers who do not qualify under the Regulations is likely to be more flexible and we have recommended to clients that a statement is provided to agencies setting out the school’s policy on terminating any temporary supply. Ideally this should be coordinated across a MAT, where appropriate. This would be on the basis that the school is exercising its discretion under the PPN 02/20 and in the knowledge that the agency may either “furlough” workers (under the Job Retention Scheme) or redeploy them themselves as the employer to other schools who are in need of short term staffing support. We would not expect agencies to profit for any arrangement by continuing to be paid by schools and yet redeploy non utilised supply workers on other short term contracts.
The Government has confirmed that funding for schools will continue as normal during the period of closure. However in some cases income to meet specific staffing duties may have reduced or disappeared altogether, for example catering staff funded through parental payments and sports centre staff funded through lettings income/charges payable by members of the public.
The DfE has now helpfully confirmed that schools can access the Coronavirus Job Retention Scheme for non publicly funded staff who a school might wish to furlough. The Scheme enables employers (i.e. the MAT or the Governing Body in the case of voluntary and foundation schools) to make a claim which will fund up to 80% of an employee’s salary up to a maximum of £2,500 per month. Staff must be placed on furlough leave (which means they cannot work) and must have been on PAYE as at 19th March 2020 (this was changed from the previous date of 28th February 2020 in order to reflect those starting work before the lockdown). The employer is not required to top up the 20%. The Scheme is designed to avoid employers otherwise having to make redundancies or lay off workers.
Details for schools can be found here.
Whilst there is some uncertainty on the detail, it should be possible to furlough and make an application for staff with dual contracts or multiple roles. The school should seek to make a claim only for that element which would have been funded by non public funds (in a nursey setting for example the parent top up not the LA funded hours). The application process will rely to a large part on self-certification and therefore schools must keep a record of how a decision is made to decide if a role (or part of a role) is not publicly funded. As the Scheme is designed to avoid laying off staff and making redundancies, schools should seek to redeploy staff in the first instance, particularly where only part of a role is affected by the loss of funding.
As employment contracts are very unlikely to provide for any kind of furlough leave (and any reduction in pay is automatically unlawful), furlough leave needs to be agreed with relevant employees. A formal agreement or letter could be used to evidence that agreement. We have drafted a template for this purpose. Please contact a member of the School Support team if you would like a copy.
Similar considerations might be relevant to other staff, particularly those on short term contracts, casual or zero hour contracts or consultancy arrangements whose role is in effect now redundant. Examples include exam invigilators, peripatetic music teachers, some learning support assistants and others providing interim school improvement support. Schools might wish to consider utilising the principle of furlouging in order to reasonably reduce cost in the short term even though the role may be primarily publicly funded (particularly where staff cannot be redeployed).It is impossible to generalise as to the right approach for each category and schools should avoid a one size fits all solution. Schools should be alert to the risk that some workers may seek to argue that they have employment status as a way to improve their position and entitlements.
We can provide case specific advice if needed.