MYTH BUSTERS - What to say when you’re told you haven’t got a case … when you have!
MYTH ONE:
“Schools can pay agency teachers what they like because ‘pay portability’ no longer applies”
When an agency teacher starts to raise their rights to be paid ‘to scale’ after 12 weeks, under the Agency Workers Regulations (AWR), they may well be told that they definitely haven’t got a case because ‘pay portability’ no longer applies. That phrase refers to legislation that was removed from the School Teachers’ Pay & Conditions Document (STPCD) in 2013.
That worsening of the STPCD means that permanent teachers starting work at a new school are no longer automatically entitled to be paid at least at the same salary point that they were on in their previous job. Academies have always been allowed to operate outside the STPCD in any case.
But none of this means that schools can automatically ignore the AWR and pay their agency teachers what they like after 12 weeks.
● What does official guidance say?
The main AWR guidance for hirers of agency workers is issued by the ‘BEIS’ Government Department. It says:
“Deciding what “equal treatment” means will usually be a matter of common sense – the requirement is simply to treat the worker as if he or she had been recruited directly to the same job”.
It also gives the following advice “where a hirer has pay scales or pay structures”:
“A hirer has various pay scales to cover its permanent workforce, including its production line. An agency worker is recruited on the production line and has several years’ relevant experience. However the agency worker is paid at the bottom of the pay scale. Is this equal treatment?
Yes, if the hirer would have started that worker at the bottom of the pay scale if recruiting him or her directly. But if the worker’s experience would mean starting further up the pay scale if recruited directly, then that is the entitlement.
Starter grades which apply primarily, or exclusively, to agency workers may not be compliant if not applied generally to direct recruits”.
In short, if a school says it will only pay an agency teacher at, say, an M1 rate, then it will need to show that it also recruits new permanent staff at M1 too.
Each case needs to be argued on the specific policy and/or practice in that school, not on the STPCD in general.
● What does the school policy say?
In order to help recruitment, many schools have retained ‘pay portability’ in their pay policies, despite the changes made to the STPCD.
A clear cut way to show that an AWR claim is justified is to show that the school’s own pay policy states that ‘pay portability’ applies and/or that previous experience is taken into account when recruiting new staff.
● Rush v Academics Ltd 3202251/2020
With the right advice, Jenna Rush, an agency teacher working in a Multi Academy Trust in Outer London, used the wording of the Trust’s pay policy to successfully win her AWR claim.
Jenna was an experienced “post-threshold” teacher returning to work after a career break. She taught for most of the 2019/20 academic year at three primary schools run by the Arbor Trust. Her pay rate through ‘Academics Ltd’ agency was £140 a day, including holiday pay.
In April 2020, she found out about the AWR and queried her pay rate. The agency agreed to adjust her pay, but only to the STPCD rate for an M1 Outer London teacher - £145.41 a day. Jenna Rush argued that, under the AWR, after 12 weeks she should have been paid at the U1 daily rate for Outer London, £212.40.
She won! An Employment Tribunal ruled that:
● “There is nothing in the Regulations that says that an agency worker, regardless of their skills and experience, should be treated as standing in the position of a newly qualified worker, once they have completed their 12 weeks employment. The question is what was the Claimant’s entitlement, with all her skills and years of experience, had the Trust recruited her directly for the post of qualified Primary Art Teacher”.
● “Nothing in the evidence supports the position that her entitlement was to M1”
● “The Trust’s policy states as follows: ‘The school is committed to the principle of pay portability and will apply this principle in practice when making all new appointments’ ”
● “It is this Tribunal’s judgment that [Ms Rush] is entitled to remedy for her successful complaint of unlawful deduction of wages. [She] should have been paid at U1 for the period 1 January 2020 until the date she left in July 2020. As she has already been paid at M1 level for that period, the Claimant is entitled to be paid the difference between M1 and U1”.
● What if the school policy isn’t clear?
The Rush vs Academics Ltd claim was certainly helped by the Arbor Trust policy specifically referring to ‘the principle of pay portability’. But what if the school pay policy isn’t that clear-cut?
A Tribunal won’t just look at policy, it will also look at the actual practice being carried out in the school, Trust or Local Authority for setting the pay of newly appointed staff. The key question is always: ‘if the school had been recruiting the agency teacher directly, what pay point would they have been awarded?’
A school can’t assert that “we can pay you what we want” if an agency teacher can show that, in practice, when it recruits permanent staff, it does take experience into account and starts them at higher points on its pay scale.
If they say it’s individually negotiated, then why hasn’t that taken place with agency teachers? As the Rush Tribunal states “[She] was entitled to have the benefit of a conversation with the [Agency] and the Trust at the 12 week mark as to what would have been the appropriate wage for her. She was denied that benefit”.
In practice, how many schools appoint all their new recruits to the bottom of their pay scale? Very few, if any, because they wouldn’t be able to recruit to their vacancies! However, the more evidence that can be provided to support the teacher’s case, the stronger the claim can be.
Useful evidence for the agency teacher and their trade union rep to gather can include:
● School pay policy - even if it doesn’t mention ‘pay portability’ specifically, what does it say about how starting rates for new recruits are agreed?
● Adverts - from the school or the wider Trust/Local Authority that show appointments to permanent teaching posts are being made at higher points on the scale. (For example, Jenna Rush provided, as additional evidence, the advert the Trust used to recruit a new Art Teacher after she ceased working there. It included the full salary range from M1 – U3).
● Evidence from other teachers - about what pay rates they were appointed to, about the practice in school for recognising experience.
***
MYTH TWO:
“Schools can pay agency teachers at lower rates because they don’t carry out a permanent teacher’s duties”
When an agency teacher starts to raise their rights to be paid ‘to scale’ after 12 weeks, under the Agency Workers Regulations (AWR), some schools and/or agencies will argue that they have no such right because a supply teacher doesn’t do ‘the same work’ as permanent teachers. These claims are excuses designed to keep down the costs of employing a qualified teacher and deny them their AWR rights.
The teacher - and their union rep - should stick to their guns and demand the pay to which they are entitled.
● What do some agencies say?
“If an agency worker has worked at your school for 12 weeks but only on a daily supply basis, it’s unlikely that AWR will be applicable. The worker will invariably be undertaking a substantially different role each time they come to your school and should not, therefore, be entitled to equality of pay under the AWR”. ‘PK Education’ website.
The example above, taken from one agency’s website, is typical of the kind of
arguments that are made. Whatever the exact words used, they all boil down to the same claim - that an agency teacher is carrying out a very different role to a permanent teacher, and so isn’t entitled to the same pay and conditions.
● What does the law say?
Section 5 of the Agency Workers Regulations 2010 sets out how, after the qualifying period of 12 weeks, an agency worker is entitled to the same basic pay and conditions as they would have received if they had been recruited directly.
In order to establish those entitlements, the Regulations refer to “a comparable employee … engaged in the same or broadly similar work”.
Of course, an agency teacher’s duties might not be exactly identical to those of a permanent classroom teacher with, say, a tutor group. On the other hand, agency staff have pressures on them that a permanent teacher doesn’t have to face, often having to learn and adapt at short notice to different systems operating in different assignments.
Above all, the “broadly similar work” that both the directly recruited and agency teacher carry out is clear - it’s classroom teaching - and the agency teacher is entitled to be paid as such.
● What about official guidance?
The main AWR guidance for hirers of agency workers is issued by the ‘BEIS’ Government Department. It says:
“It is not necessary to look for a comparator. Deciding what “equal treatment” means will usually be a matter of common sense - the requirement is simply to treat the worker as if he or she had been recruited directly to the same job.
Equal treatment … covers basic working and employment conditions. They are those which are ordinarily included in relevant contracts (or associated documents such as pay scales … ) of direct recruits”.
The pay and conditions that must be applied under the AWR are those that ordinarily apply in that school - i.e. the standard pay scales that apply to direct recruits. For agency teachers, the entitlement is to the teachers’ pay scales applying in that school.
● What about “specified work” ?
Some schools and agencies argue that agency teachers are not carrying out “specified work” so aren’t entitled to be paid as teachers. They may refer to this advice from the DfE guidance on the Agency Workers Regulations:
“Teaching Pupils. If the school asks a temporary work agency to provide a teacher to carry out specified work in a school and the person engaged to do the work is a qualified teacher they should be paid as a qualified teacher … “Specified work” means planning, preparing and delivering lessons and courses to pupils and assessing and reporting on the development, progress & attainment of pupils”.
There’s nothing in this advice that implies that agency teachers shouldn’t be paid on teachers’ pay scales. Far from it. It is saying that, if you are a qualified teacher, and you “teach pupils”, you should indeed be paid as a qualified teacher.
The idea of “Specified Work” comes from the Education (Specified Work) Regulations first introduced in 2003 following the then Labour Government’s “Workforce Agreement” introducing the idea of “cover supervisors” to take on some short-term absence cover.
Many employers will have agreed pay scales for cover supervisors. But this is not the work carried out by someone engaged as an agency teacher and these are not the scales that should apply to them under the AWR.
● “Actively Teaching”
The official 'WAMG Cover Supervision Guidance' made clear how ‘cover supervision’ differs from ‘active teaching’:
“Cover supervision occurs when no active teaching is taking place and involves the supervision of pre-set learning activities in the absence of a teacher:
1. Supervising work that has been set in accordance with the school policy
2. Managing the behaviour of pupils whilst they are undertaking this work to ensure a constructive environment
3. Responding to any questions from pupils about process and procedures
4. Dealing with any immediate problems or emergencies according to the school’s policies and procedures
5. Collecting any completed work after the lesson and returning it to the appropriate teacher
6. Reporting back as appropriate using the school’s agreed referral procedures on the behaviour of pupils during the class, and any issues arising.”
An agency teacher is hired to ensure that far more than ‘supervision’, only responding to questions ‘about process’, is taking place.
As a qualified teacher, they will be ‘actively teaching’, answering questions about ideas, explaining concepts, delivering lessons, assessing progress. They will indeed be carrying out activities that constitute “specified work” under the Regulations.
To qualify for the AWR, the agency teacher will have been working on an assignment for over 12 weeks. Of course they will have been planning and preparing in order to be able to carry out their teaching work. Yes, they may be drawing on plans and resources provided to them, but that is simply recommended practice to reduce unnecessary workload.
Assert your rights to equal treatment!
