Agency Workers Regulations (AWR)

WORKERS REGULATIONS 2011 (AWR)

Summary

These regulations came into force in October 2011 and have an impact on all schools that use agencies for staff
cover. Under these regulations an agency worker at your school has immediate Day One Rights and Rights after
a qualifying period of 12 weeks. This 12 week qualifying period does not have to be continuous.    


The  greatest  impact  to  your  school  will  be  the  right  to  comparator  pay  after  the  12  week  qualifying  period.    
However, allowed under this regulation is the Swedish Derogation contract of employment. The agency worker
would be placed on this type of contract at the request of the school where there are no funds available to meet
equal pay. In return for accepting this contract the agency worker would forfeit equal pay in return for regular
work from the agency.


Bay Resourcing uses state of the art technology and traditional expertise to monitor, calculate and will inform
you  when  an  agency  worker  has  completed  a  12  week  qualifying  period.  Refer  to  Calculating  the  Qualifying  
Period.


Since we also have to include any periods that the agency worker has been supplied to you by another agency
we have amended our Terms and Conditions to include a clause asking schools to tell us if this is the case. We
have also included a new clause in our contract with staff asking them the same thing.


You should be aware that the AWR contains anti-avoidance provisions which prevent a series of assignments
being structured in a way that prevents an agency worker from completing the qualifying period which carries
a £5,000 fine.



Your school's role

'Day  One  Rights'.  From  the  first  day  of  an  assignment  in  a  school,  agency  workers  have  the  same  rights  as  
permanent  staff  members  such  as:  canteen  or  similar,  including  school  meals,  Photocopying  facilities  –  for  
class  worksheets  etc,  Books  and  other  learning  resources,  Toilet/shower  facilities,  Staff  room,  Coffee/tea  
making facilities or food and drink machines, Car parking if available, School buses, Workplace crèche, Mother
and baby room as well as invited to Health and Safety briefings and evacuation procedures.


It does not mean that the agency worker has enhanced rights – for example if there is a waiting list for the car
park the agency worker would not have a right to a car parking space but they would have a right to go on the
waiting list.


Agency workers will have the right to be provided with information about relevant job vacancies with the school
in the same way that existing comparable employees are. Schools will need to ensure that the agency worker
knows where to access such information e.g. a noticeboard.


Rights after week 12 After the agency worker has worked with the same school within the same position for  a
Qualifying period of  *12 weeks, the agency worker is entitled to the same terms and conditions including equal
pay and annual leave as schools own employees.


Equal Pay


Teachers  with  Qualified  Teaching  Status  (QTS)  will  be  entitled  to  national  pay  scales  in  accordance  with  the  
'School  Teachers  Pay  and  Conditions  Document  2014  and  Guidance  on  School  Teachers  Pay  and  Conditions.  
However  new  reforms  with  these  Pay  and  Conditions  removed  the  requirement  when  recruiting  to  match  a  
teacher's existing salary on either the main or upper scale, giving schools more freedom to determine starting
salaries of teachers new to the school. Therefore under these pay and conditions, Equal treatment after the 12
week qualifying period for a supply teacher who is an agency worker will depend on the pay structure of the
school/local authority in which they are working. All support staff will be paid according to the pay structure of
the school/local authority in which they are working. The cost of cover will increase in both instances.


Other  basic  employment  conditions  include  duration  of  working  time,  breaks  and  annual  leave.  This  will  
not  include  occupational  sick,  maternity,  paternity  or  adoption  pay,  redundancy  pay,  notice  pay  for  loss  of  
employment, a pension, expenses and time off for Trade Union duties.


The  regulation  also  allows  for  the  agency  worker  to  be  offered  a  Swedish  Derogation  contract.  The  agency  
worker would be placed on this type of contract at the request of the school where there are no funds available
to meet equal pay. In return for accepting this contract the agency worker would forfeit equal pay in return for
regular work.  


After the 12 week qualifying period, pregnant workers are entitled to paid time off whilst attending ante-natal
appointments.  We  will  meet  any  additional  costs  here  and  provide  a  replacement  worker  should  the  school  
require  one.  If  a  risk  assessment  is  required  it  is  the  school's  responsibility  to  carry  one  out  and  make  any  
adjustments to remove the risk if possible.


Calculating the Qualifying Period


The qualifying period starts with the first day that the agency worker starts at your school. If this is a Wednesday,
the qualified period will be Wednesday to Tuesday. As little as half a day a week represents a qualifying period.
The qualifying period does not have to be continuous.


If an agency worker is on assignment to more than one school during a week (or even during a day), this will
result in more than one qualifying period running at any one time.


Because the working patterns of agency workers can be irregular, the AWR provide for a number of circumstances
in which breaks do not prevent them from completing the qualifying period.


If  you  think  of  the  qualifying  period  as  a  clock  which  runs  from  0  to  12,  a  gap  between  assignments  –  or  a  
move to a new assignment – will sometimes mean that the clock is reset to 0 and must start again. In other
circumstances, a break will merely 'pause' the clock, which will then continue to tick when the agency worker
resumes  the  assignment.  In  some  limited  circumstances,  the  clock  will  continue  to  tick  even  if  the  agency  
worker is not working on an assignment.


Most commonly, the clock will be set to zero because:

  • an agency worker begins a new assignment with a new school;
  • an agency worker remains with the same school but is no longer in the same role; or
  • there is a break between assignments with the same school of more than six weeks that is not one which 'pauses' the clock or during which it continues to 'tick'.


The types of break that cause the qualifying clock to 'pause' are:

  • 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 school;
  • a break of up to 28 weeks because the agency worker is incapable of working because of sickness or injury;
  • any break which is for the purpose of taking leave to which the agency worker is entitled, including annual leave;
  • a break of up to 28 calendar weeks to allow the agency worker to perform jury service;
  • a break caused by a regular and planned shutdown of the workplace by the school (for example at Christmas); and
  • a break caused by a strike, lock out or other industrial action at the school's workplace.
  • breaks due to pregnancy, childbirth or maternity which take place during pregnancy and up to 26 weeks after childbirth; and
  • any breaks due to the worker taking maternity leave, adoption leave or paternity leave.


Where  an  agency  worker  has  consecutive  absences  of  different  types,  whether  or  not  continuity  is  broken  
will  depend  on  the  type  of  absence.  For  example,  if  an  agency  worker  takes  a  break  of  five  weeks  between  
assignments and is then absent for two weeks due to sickness, the sickness absence pauses the clock. If the
worker then returns to the same role, the clock resumes ticking. In these circumstances, the break is longer
than six weeks but continuity is not broken as the clock is paused after five weeks.

If you would like more information, please do not hesitate to contact:

Ann Davies
at Bay Resourcing
on 02920 494 560
or info@bayresourcing.com

 

* this bonus applies to: teaching students on a PGCE or BA QTS course, Primary Teachers, Welsh Medium Teaching Assistants (any qualification) and English Medium Teaching Assistants that have Level 3 only. This payment will be invalidated if you have already been recommended to us.