How does AWR affect schools, academies and academy trusts?

What are the Agency Worker Regulations (AWR)?

The main principle of AWR is to give equal treatment to temporary workers (defined by the Regulations as agency workers), in line with comparable permanent employees or directly recruited workers, with regard to pay and certain other working conditions after 12 weeks in an assignment. The AWR arise out of the European Agency Workers Directive. All temporary workers including those employed through umbrella limited companies although workers who are genuinely self employed are excluded.

Who qualifies for equal treatment?

Although there are some Day One rights, to qualify for equal treatment with regard to basic working and employment conditions the agency worker must have been engaged by the hirer, in the same or similar position, for a period of 12 continuous calendar weeks (the “qualifying period”). There are circumstances in which this qualifying period is paused, or reset to zero, but generally the qualifying period will accrue unless there is a break of more than 6 calendar weeks. For more information about AWR and the Qualifying Period, visit our website: https://www.flourisheducation.co.uk/what-are-the-agency-worker-regulations/

Who is the hirer?

According to the Agency Worker Regulations (AWR), the “hirer” is a “person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person”.

A “hirer” will have its own legal identity and is responsible for supervising and directing the agency worker while they undertake the assignment. The question of who is the hirer is a matter of fact to be determined in the light of the circumstances of each case.

The hirer in maintained schools is the school’s governing body or the Local Authority (LA)

In foundation schools, voluntary aided schools and foundation special schools, the “hirer” is the school’s governing body, being the legal entity to whom the worker is supplied and who is responsible for the supervision and direction of that worker.

In community schools, voluntary controlled schools, community special schools and maintained nursery schools, the “hirer” is either the local authority or the school’s governing body. We, as an agency, do not supply agency staff to Local Authorities and all of our agency workers are supervised and directed by the schools that we work with, so it is highly unlikely that when dealing with AWR information requests from us, the request needs to be escalated to the LA.  

However please bear in mind that if you have an agency worker, working in your school who has been supplied via the LA and the LA supervises and directs the agency worker’s work, you should escalate the AWR comparable form to you LA because an agency supply teacher can move between schools where the same local authority is the hirer without stopping the clock on the qualifying period, unless it is a substantively different role.

The Hirer in Academies & Free Schools is the proprietor of the school also known as the Academy Trust

For academies, including free schools, the “hirer” is the proprietor of the school (also known as the “academy trust” - the legal entity that has entered into a funding agreement with the Secretary of State in relation to the running of the academy), being the legal entity to whom the worker is supplied and who is responsible for the supervision and direction of that worker.

An agency worker can move between academies where the same academy trust is the hirer without stopping the clock on the qualifying period, unless it is to a substantively different role.

The Hirer in Independent Schools is the proprietor of the school

In independent schools, the “hirer” is the proprietor of the school. If agency teachers move from one independent school to another (which has a different proprietor), the hirer would change.

In some cases, a proprietor may have more than one school, so the qualifying period would not be broken if an agency teacher changes schools under the same proprietor unless it is a substantively different role.

What legal obligations do Schools, Academy Trusts and Local Authorities have under AWR? 

As the Hirer of temporary agency workers; Schools, Academy Trusts and Local Authorities have a legal obligation to provide your agency with up to date information on your basic working and employment terms and conditions, along with confirming any previous assignments the agency worker may have had, under your direction and supervision (including via other agencies). 

This is to ensure an agency worker receives correct and equal treatment as if they had been recruited directly, after 12 weeks in the same job. Hirers are also responsible for ensuring all agency workers can access their facilities and can view job vacancies from the first day of their assignment.

What do schools and Academies need to do, to be AWR compliant?

Day 1 Rights

To ensure you are compliant with Day 1 AWR right, schools must ensure that from the first day of their assignment that:

• the agency worker has access to collective facilities & amenities such as canteen facilities and/or the staff room.
• the agency worker knows what and where any relevant school vacancies are being advertised

Week 12 Rights

To ensure continued AWR compliance, schools/academies should:

• Have a clear list of responsibilities for each pay band, so when finding a comparable worker, or using the “as if” test, it is easy to work out the pay band based on the responsibilities of the role.
• At the start of every long term booking, advise your agency of the exact responsibilities of the role and the pay scale you would pay if you were recruiting direct. (The “as if” test)
• Most agencies will also send you a AWR comparable questionnaire – please ensure you complete this in a timely manner, in order for you to remain AWR compliant.

What will Flourish Education do, to ensure AWR compliance?

• When taking details of a long term assignment, we will ask you for a full list of responsibilities for the role we are recruiting for and ask you for the pay scale you would pay, if you were recruiting direct (“as if” test).
• We will then advise you on what the current pay rate will be and also the predicted pay after 12 weeks.
• 4 weeks before the qualifying period is due to end (week 8 of the assignment), we will send you a AWR comparable questionnaire – this is an online form, designed to take less than 10 minutes to complete, which confirms the agency worker will receive equal pay and conditions after the 12 week qualifying period as a comparable worker, or “as if” you had employed the agency worker direct.
• Ensure after the 12 week qualifying period, the agency worker has the same basic working and employment conditions as they would be entitled to for doing the same job had they been recruited directly by the hirer. Please note, if we do not receive the comparable questionnaire back, we will be unable to confirm the same basic working and employment conditions and therefore, the school could become liable under AWR.

Further reading:

AWR: Explained - What are the Agency Worker Regulations? 

Department For Education's guidance for Schools, Academies, Free Schools and Independent Schools: Agency Workers Regulations: Supply Teachers

Department for Business Innovation and Skills (BIS) main AWR guidance for Hirers of agency workers and recruiters: Agency Workers Regulations 2010

If you have any questions about AWR or would like to discuss any of the points in this article further, then please get in touch with our team today.