AWR in Schools

What is AWR?

AWR means: The Agency Workers Regulations 2010. The regulations took effect from 1st October 2011. These regulations give temporary agency workers in all sectors, the entitlement to the same basic employment and working conditions, as if they had been recruited directly - if and when they complete a qualifying period of 12 weeks in the same job, with the same hirer. The Regulations also mean agency workers are eligible for certain rights straight away ('Day 1' rights).

The Regulations are very complex and have had to be clarified for schools and supply teachers by guidance notes issued by the DFE. Even now, areas of both the Regulations and the Guidance Notes remain ambiguous, contradictory and open to different interpretations.

This is normal for all new regulations, particularly relating to employment law across multiple sectors, and things will only become clearer once they have been tested in an employment tribunal and precedents have been set.
The regulations were updated in 2019 (taking effect from 1st April 2020) and the guidance has been updated accordingly.

Who is the hirer?

The hirer is: ‘a “person” …which is engaged in economic activity and which books agency workers via a TWA. The hirer is responsible for supervising and directing the agency worker while they undertake the assignment.

According to the DFE guidelines, the definition of the hirer "is to be determined in each case and depends on to whom the worker is supplied and who supervises and directs that person's work."

We will define the hirer as an individual school in all cases, based on the fact that schools are responsible for "supervising and directing the agency worker while they undertake the assignment."

Definition of ‘new’ hirer

The qualifying clock will be reset to zero if the agency worker stops working for one hirer and begins working for another.

Generally, such situations will be clear. A new hirer for this purpose must be a different person (a different legal entity). Where a single hirer has multiple sites, merely moving the worker from one site to another will not usually break continuity (unless it is a substantively different role – see section on factors which indicate role is substantively different).

However, hirers and TWAs should be aware of the anti-avoidance provisions which prevent a series of assignments from being structured in such a way as to prevent the worker from completing the qualifying period. These provisions would cover, for example, the situation where an agency worker is moved back and forth across a group where there is common ownership via holding companies and subsidiaries and the intention is to deprive the agency worker from receiving equal treatment.

If there is a substantive change to a job role within the same hirer, a new qualifying clock commences for the new role.

What are Day 1 rights

‘Day 1 rights’ cover two main areas:
1) equal access to facilities with comparable employees and
2) information about permanent vacancies with the hirer

Facilities will vary from school to school and may include:

  • A canteen or other similar facilities
  • Transport services (eg. pick-ups from stations if provided)
  • Staff common room
  • Waiting room
  • Prayer room
  • Food and drinks machines
  • Car parking (subject to availability of space)

For permanent vacancies, all agency workers will be entitled to be provided with information about any relevant job vacancies within the hirer that would be available to a comparable employee or worker. Schools can choose how to publicise vacancies (eg. via the internet/intranet or on a notice board in a communal area), but the agency worker should know where and how to access this information.

What happens after 12 weeks ?

After an agency worker completes a 12-week qualifying period with the same hirer, in the same role, they will be entitled to have the same basic terms and conditions of employment, as if they had been employed directly by the hirer. These are:

  • Key elements of pay
  • Duration of working time
  • Rest periods
  • Rest breaks
  • Annual leave
  • Paid time off for ante-natal appointments

The updated guidance due to the repeal of the Swedish Derogation, removes the exemption related to permanent contracts. Now all workers who have completed their 12 weeks will be entitled to the same pay is if they had been directly employed by the hirer.

How do we calculate 12 weeks?

The 12-week qualifying period is triggered by working in the same job with the same hirer for 12 calendar weeks. A calendar week is any period of seven days starting with the first day of an assignment. Important things to note:

  • An agency worker can qualify for equal treatment after 12 weeks in the same role with the same hirer, regardless of whether they have been supplied by more than one agency over the course of that period of time.
  • Calendar weeks will be accrued regardless of how many hours the worker does on a weekly basis. Even if the booking constitutes only a couple of hours a week, it will still count as a week and they will still be entitled to equal treatment after 12 calendar weeks.

What is a qualifying clock?

A qualifying clock is the process by which we will count the number of weeks a candidate has worked with each hirer.

The clock is paused (not stopped) when there is:

  • A break for any reason where the break is no more than six calendar weeks and the agency worker returns to the same role with the same hirer
  • A break because the agency worker is incapable of work because of sickness or injury
  • A break to allow the agency worker to perform jury service
  • A break caused by a regular and planned shutdown of the workplace by the hirer (e.g. for school holidays)
  • A break caused by a strike, lock out or other industrial action at the hirer's establishment

How do I calculate ‘equal pay’?

Equal pay for supply staff is determined by using comparable pay to those employed directly by the school – a comparator. The comparator rate we use for our workers will depend on the role we are filling and will most likely fall into one of three categories:

  • Qualified teachers not undertaking a full classroom teacher role ("supply cover")
  • Qualified teachers undertaking a full classroom teacher role ("teaching cover")
  • Unqualified teachers, cover supervisors and support staff

What is a “full classroom teacher role”?

We define a full classroom teacher role as one that includes all aspects of "specified work".

According to the DFE supplementary guidance on AWR, specified work means "planning, preparing and delivering lessons and courses to pupils and assessing and reporting on the development, progress and attainment of pupils".

How much do I have to pay Teachers doing “teacher cover”?

Where a qualified teacher is undertaking all aspects of specified work, we will use the scale pay rate appropriate for the role, as specified by the school, as our comparator. Thus, if the school defines the job as an M1 role, then the comparator rate for the agency worker will be the M1 scale level.

How much do I have to pay support workers and cover supervisors?

Pay scales for support workers tend to be defined by individual local authorities and can vary widely. The comparator rate for support workers will be either:

  • The market rate you need to pay to secure the candidate in the role or
  • A rate determined by the school and communicated to you

How do I calculate the rate for a role for a Teacher?

The various geographical pay scales for teacher roles (qualified and unqualified) and their equivalent daily rates are set out in Appendix 1.

Can schools switch out workers/change bookings before people hit the 12-week threshold?

Yes. Bookings can be managed according to need and budget.

The Regulations do contain 'anti-avoidance' measures to protect individual workers from being repeatedly taken out of bookings with the same hirer as they approach the threshold, and then re-booked for another period of 12 weeks after 6 weeks have elapsed. However, different agency workers may be employed every 12 weeks.

Can teachers opt out of their AWR rights to keep working?

No. The Regulations do not allow for any opt outs.

How will I know when a worker is approaching 12 weeks in my school?

GSL Education will track all candidate weeks for you and inform your school in plenty of time when thresholds are being approached.

What information do I need to provide GSL Education?
  • Whether a worker has worked at the school previously through a different agency
  • Details of the appropriate basic pay rate or scale point for that role if the school were to hire directly

Will I need to increase a candidate’s pay rate?

If the daily equivalent of a scale pay rate for the role is higher than a worker's pay upon commencing the booking, the worker's pay will need to be increased after 12 weeks. Schools have two options to comply:

  • The daily rate of pay may be re-calculated to incorporate the difference
  • The worker can be taken onto permanent contract, liable to a perm fee

How can I find out more information?

Daily equivalents for scale pay rates for Teacher roles can be provided by your Education Consultant. You can also contact them regarding any aspect of AWR for further clarification and information.