Brabners Chaffe Street Legal Update 13.12.11
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13.12.2011
SUPPLY TEACHERS MAY NOT FALL OUTSIDE THE SCOPE OF THE AGENCY WORKERS REGULATIONS 2010 (“AWR”) According to the Department for Education (“DfE”), the “professional exemption” provided for by Regulation 3(2) cannot be used to exclude supply teachers from the scope of the AWR. Regulation 3(2) excludes those temporary workers who are in a “profession or business undertaking” where (1) the contract they have with the agency has the effect that the agency is a client or customer of a profession or business undertaking carried on by the temporary worker; or (2) the contract has the effect that the status of the hirer is as a client or customer of a profession or business undertaking carried on by the temporary worker. The effect of falling within the scope of the AWR is that supply teachers will be entitled to some of the same rights as directly employed teachers from the beginning of their assignment. For instance, supply teachers will be entitled to the same rights to collective amenities and facilities such as parking or crèche facilities. Supply teachers would also be entitled to pay parity with directly employed teachers after a 12 week qualifying period. The DfE bases its claims on the fact that schools and supply teachers are not in a “business to business relationship” as supply teachers are under the school’s supervision and direction. Whilst it could practically be the case that supply teachers are under the school’s supervision and direction, critics have pointed out that the words “business to business” do not actually feature in Regulation 3(2). This has led to the accusation that the DfE is attempting to force through its views regarding the position of supply teachers without objectively deciphering the Regulations. Furthermore, as the DfE’s views are only persuasive at the very most, others have argued that the DfE should refrain from making such announcements until the issue can be authoritatively determined by the Courts and Tribunals. Despite this, the DfE has also announced that it will not be awarding “Quality Marks” to agencies offering or using the professional exemption for supply teachers. Adrian Marlowe, Chairman of The Association of Recruitment Consultancies (“ARC”), is alarmed that this has the potential to disenfranchise a “large number of experienced teachers from the agency market”. Marlowe also bemoans the prematurity of this decision given the fact that Regulation 3(2) has not even been interpreted by the Tribunals and Court.
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