Supply Teacher Agency Workers
Continued Payment Guidance
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Assignments should not be automatically terminated for a reason related to the current emergency as the individuals may still be entitled to receive continued payments.
The following is the FAQ from the LGA:-
“Should schools continue to pay supply teachers and other contingentworkers?
Schools will continue to receive their budgets for the coming year as usual,regardless of any periods of partial or complete closure. This will ensure that they areable to continue to pay for staff and meet their other regular financial commitments.We expect schools to continue to pay staff they employ directly in the usual fashion,and correspondingly not furlough them.We expect schools will draw first on their existing staff to maintain necessaryprovision, but schools may continue to need supply teachers and other temporaryworkers throughout this period. We encourage schools and employment businesses(agencies) to continue to liaise on any potential need to ensure workers are availablewhere required.”
Whether an agency worker will remain entitled to be paid will depend first of all on whether they are entitled to be paid under the Agency Worker Regulations 2010. Broadly speaking, those Regulations give agency workers the right to equal treatment in terms of "basic working and employment conditions", as if they had been employed directly by the hirer to do the same job. In many cases this means that agency workers will be entitled to the same rate of pay as a comparable employee, so if a comparable employee is being paid during the school closure period, then the agency worker may be entitled to be paid. However, that right only applies after a 12-week qualifying period.
Importantly though, any entitlement under the Regulations will apply only for the length of the assignment. For example, if a worker was brought into cover absence for a week, then they would remain entitled only to be paid until the end of that week. To determine the length of the assignment the first step will be check the agreement between the agency and the school to see whether that sets out its length. In some cases though, the length of the assignment may be more difficult to determine, for example if they were covering sick leave on an open ended basis. In such cases schools may want to make an assessment of how long the assignment might reasonably be expected to have lasted.
In terms of liability under the Regulations for any non-payment, responsibility for providing rights under the Regulations is primarily with the employment agency. However, if the reason the agency worker was not being paid was because the school stopped paying the agency then if a claim was brought by an agency worker then an employment tribunal might well find that the school was responsible for the breach and so it should be liable for the non-payment.
If the worker does not have any entitlement to pay under the Regulations, schools should still check whether there is any contractual obligation with the agency and/or worker which would require them to continue paying for the worker.
Finally, in many cases schools will choose to continue to pay an agency worker for the school closure period, irrespective of whether there is any legal entitlement to pay.
Where a Supply Teacher has been engaged on a contractual basis other than a casual worker or an agency worker, then the contractual obligations and government guidance must still be examined to consider any entitlement to continued payment.
If you have any questions please speak to the PACT HR Team or your HR Provider.