Agency workers play a vital role in the UK workforce, providing flexibility for both employers and workers.
In the education sector, the use of agency workers is commonplace, with supply teachers, teaching assistants, exam invigilators and facilities staff engaged via agencies all playing a crucial role in providing short term resourcing or addressing staff shortages in the sector.
It is important for schools to understand their obligations as a business engaging agency staff, as there is often confusion over the employment rights of agency workers.
The Agency Workers Regulations
The Agency Workers Regulations 2010 (AWR) came into force on 1 October 2011 and were introduced to ensure that agency workers are treated fairly in the workplace.
The AWR apply to workers who have a contract with an agency but are assigned to work temporarily for a hiring organisation, such as a school. They do not apply to self-employed contractors or those employed on a service contract. They do not apply to any other workers engaged by a school directly. Under the AWR, agency workers are entitled to certain rights from the first day of their assignment and additional enhanced rights after 12 weeks of continuous work with the same hirer in the same role.
The AWR seek to address discrepancies in basic working and employment conditions between agency workers and permanent staff performing comparable roles. By providing a legal framework, the AWR aim to prevent exploitation and ensure that agency workers receive fair treatment.
Key rights of agency workers
Worker status
Staff engaged through an agency will in most cases be workers. This means that they will be entitled to some employment rights including:
- National Minimum Wage
- Protection from unlawful deductions from wages
- The statutory minimum level of paid holiday
- The statutory minimum length of rest breaks
- To work no more than 48 hours on average per week or to opt out of this right if they choose
- Protection against unlawful discrimination
- Protection for ‘whistleblowers’ who report wrongdoing in the workplace
- Not to be treated less favourably if they work part-time
They may also be entitled to:
- Statutory Sick Pay
- Statutory Maternity Pay
- Statutory Paternity Pay
- Statutory Adoption Pay
- Shared Parental Pay
In most cases it will be the contract between the agency and the agency worker that governs these matters, however protection from unlawful discrimination and protection for whistleblowers, for example, will also likely extend to the hirer (school).
The ‘12 week rule’ – Regulation 5 of the AWR
One of the key rights that agency workers can acquire and which schools should be aware of are those set out in Regulation 5 AWR as it provides agency workers with the right to the same basic employment conditions as comparable permanent employees after completing 12 continuous calendar weeks in the same role with the same hirer. These conditions include:
- Pay: Agency workers must receive the same rate of pay as permanent staff doing equivalent work. In the AWR, ‘pay’ means basic pay, plus any fee, performance-based bonus, or other payment directly referable to employment, such as overtime. However, contractual notice pay has been excluded from ‘pay’ in the Regulations. As such, a supply teacher may well be entitled to the same rate of pay as a permanent teacher engaged directly by the school, after they have completed 12 continuous weeks in the same role. In practice this means the agency will contact you requesting an uplift to pay under Regulation 5.
- Working Hours: Agency workers are entitled to the same working hours, breaks, and rest periods.
- Annual Leave: The right to equivalent holiday entitlement is included under Regulation 5 AWR.
It is essential to note that the 12 calendar week qualification period is role-specific and continuous. If an agency worker takes a break of more than six weeks between assignments or works in a different role, or for a different hirer, the qualification period resets. However, there are some breaks that will not reset the qualification period such as sickness (of up to 28 weeks), jury service or pre-determined closure periods (e.g. school closures during holidays). Schools must carefully track agency workers’ time to ensure compliance with these rights.
Pregnant agency workers who have completed the 12-week qualifying period are also entitled to paid time off to attend pregnancy related medical appointments and antenatal classes while working for the hirer. Additionally, the clock for the 12-week continuous period will not stop for breaks due to pregnancy, childbirth or maternity up to 26 weeks after childbirth until the date the intended duration of the assignment passes.
Other employment rights
In addition to the rights mentioned above, agency workers are entitled to several other employment protections from day one:
- Right to Be Informed About Vacancies: Agency workers must be informed of any relevant job vacancies within the hiring organisation.
- The same rights as permanent colleagues to use any shared facilities and services provided by the school, for example:
- a canteen or food and drinks machines
- a workplace creche or mother and baby room
- car parking or transport services, like a local pick-up service or transport between sites
Transfer and Introduction Fees
Transfer and introduction fees are a common feature of agency worker placements in schools. When a school decides to hire an agency worker permanently, the agency will often charge an introduction or transfer fee. This fee typically applies if the school hires the worker within a specific period after the agency assignment ends.
An introduction fee can also apply where an agency has introduced a candidate to the school, and the school then engages the candidate directly. We have seen schools caught out where they have unknowingly engaged someone who had previously been introduced by an agency on a no-names basis, or where two agencies have introduced the same candidate and the school has received invoices from both for introduction fees.
Transfer or introduction fees must be transparent and reasonable. The Conduct of Employment Agencies and Employment Businesses Regulations 2003 governs the conduct of employment agencies and requires agencies to clearly outline fees in their contracts with hiring organisations. Schools should review these terms carefully to avoid unexpected costs and in particular:
- Use reputable agencies specialising in the sector and who have a proven track record
- Check whether the person who owns or runs the agency is on The Employment Agency Standards Inspectorate banned list
- Look out for unscrupulous practices by an agency – for example email footers purporting to contain their terms and conditions, or suggesting that you have agreed to their terms without even seeing them
- Be clear on the terms and conditions of the agency and ensure you see and understand them before engaging the agency’s services
Conclusion
Agency workers are a valuable section of the workforce in schools and education settings. The AWR provides crucial protections, ensuring that agency workers are treated fairly compared to permanent staff. Understanding these protections is essential for both the workers themselves and the schools that engage them. By adhering to the AWR and fostering transparent communication, schools can build positive and compliant working relationships with agency staff and ensure that they do not get caught out, which can prove costly and impact the school’s reputation of being a fair and reasonable employer.
Further Information
Our specialist Schools HR team of education-employment lawyers are experts in advising on all manner of HR and employment law issues faced by schools.
For further advice or assistance, please contact Aida Smajlovic, Partner and Head of Schools HR, on 020 7593 0278 or asmajlovic@wslaw.co.uk or the schools HR team on 0345 026 8690 or SchoolsHR@wslaw.co.uk.