Agency worker pay

After 12 weeks in the same role with the same hirer, your agency will be responsible for providing you with the same basic pay and conditions you would have received had you been engaged directly by the school or college.

The 12 weeks’ work must be undertaken in the same role. This means the same or broadly similar work in the same role, requiring a similar level of qualification and skills. A role will be considered the same role unless it involves a substantially different type of work. All classroom teaching is substantively the ‘same’ role for the purposes of the Agency Worker Regulations. If you have been moved to a substantially different role, your agency should have notified you in advance. Check the assignment details provided by your agency.

If you think your agency is deliberately rotating you between schools in order to break your continuous service, or stopping you building up 12 weeks’ service, you should contact AdviceLine.

The definition of the “hirer” is important because when you move between schools where the hirer is the same body, this does not break or stop the clock on the qualifying period provided the role is not a substantively different one. The AWR define the hirer as the person responsible for the 'supervision and direction’ of the worker. In foundation and voluntary aided schools, the hirer will be the school governing body, while in community and voluntary controlled schools, the hirer is either the LA or the school's governing body depending on the circumstances. In academies, including free schools, the hirer is the proprietor of the school i.e. the academy trust.

The NEU argues that the local authority should be regarded as the hirer in community and voluntary controlled schools, enabling all continuous periods of work in such schools to be aggregated for the qualifying period. The NEU also argues that all local authority maintained schools within the same authority should be regarded as ‘connected hirers’, again enabling continuous periods of work to be aggregated for the qualifying period.

The qualifying period is 12 calendar weeks on one or more assignments. A calendar week is the period of 7 days starting with the first day of an assignment. To calculate the 12 weeks, it is helpful to imagine the qualifying period as a ticking clock running from 0 to 12. Some breaks will prompt the clock to pause and then continue to tick after the break. Some breaks will count in full and will not interrupt the qualifying period at all. Other breaks will stop the clock and reset it to zero. Every week in which you work on the assignments in the same school or college will count; you don’t have to have worked for the whole week or even for a whole hour.

The following breaks, individually or in combination, pause the clock; they do not stop the qualifying period:

• any break for any reason up to 6 weeks
• school or college holidays or other closures
• up to 28 weeks’ absence due to your sickness, injury
• up to 28 weeks’ absence for jury service
• other authorised time off or statutory or contractual leave
• absences due to a strike, lock-out or other industrial action at the school or college.

The following breaks count in full towards the qualifying period:

• your maternity, paternity, or adoption leave
• absence relating to your pregnancy, childbirth, or maternity which take place during pregnancy and up to 26 weeks after childbirth or when you return to work if earlier than 26 weeks

If you are reassigned to an alternative role for health and safety reasons relating to your pregnancy, the time working in the alternative role will count towards your qualifying period.

Any other break of more than 6 weeks will reset the clock to zero, as will starting a substantially different role in the same school or college or starting a new assignment with a different employer.

After you have completed 12 weeks in the same role with the same hirer, you should be paid after the 12 weeks what you would have earned if you had been contracted directly (i.e. not via your agency) to do the same job. Your agency should have assessed this automatically in line with the Agency Workers Regulations 2010. We have heard from many agency members that they are not receiving the pay they are due.

You should contact your agency and ask that you are paid correctly. You can use the NEU model letters at the bottom of this page. Depending on your personal circumstances, you might prefer to wait until your contract has ended before pursuing the agency for your pay uplift, but do bear in mind the time limits for making a legal claim in the tribunal - a claim to a tribunal (if you’re entitled to make a claim) is subject to a strict 3-month time limit running from when you last worked on an assignment.

The agency must respond to you within 28 days. If your agency fails to respond or denies that you are entitled to higher pay or offers you less that you think you are entitled to, please contact AdviceLine.

If you are seeking advice from AdviceLine or contacting your agency about your pay, we recommend that you have the following information to hand:

• Your contract with the agency
• Pay illustrations
• Assignment information
• Your Key Information Document
• Your professional certificates
• The school term dates
• Your records of any absences from the school during your assignments
• A range of pay slips
• The school/college pay policy
• Any adverts for vacancies at the school as evidence of what rate direct recruits are paid

You have the right not to suffer detrimental treatment by the hirer or the agency because you have raised issues (in good faith) about your legal rights under the AWR. It would be an automatic unfair dismissal for an agency to dismiss its employee for such a reason.