Supply staff

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 check using the NEU Online AWR Pay Assessor. If you have a claim a pre-populated letter will be produced which you can send directly to the agency or used to inform a discussion with the agency. but please do not send the letter before seeking advice from the Adviceline or your caseworker if one has been assigned. 

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.

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.

You are entitled to statutory sick pay (SSP) if you meet certain conditions. You must have started your assignment and you must earn an average of at least £120 per week. If your pay varies, your entitlement depends on your average pay over the last eight weeks. If you qualify for SSP, your agency should make the flat rate payment for the duration of your sickness absence to a maximum of 28 weeks. SSP is not paid for the first three days that you are on sick leave. You won't be entitled to SSP if you are self-employed, if you have already had SSP for 28 weeks (and the 28 weeks ended within the last eight weeks) or if you have received employment and support allowance (ESA) in the last 12 weeks.

If your agency refuses to pay SSP, you should ask them for form SSP1 or written reasons for their refusal. If your agency refuses to do so, or you disagree about the amount of SSP you are receiving, you can contact the HM Revenue and Customs’ statutory payments dispute team for advice.

It is a company that acts as an employer to agency workers, such as supply teachers. The member is legally employed by the umbrella company, not the agency. The umbrella company will usually pass on to the teacher various costs such as the employer’s National Insurance contributions and the company’s fee. Revised tax rules applying from April 2016 mean that supply members working through an umbrella company can no longer claim tax relief on home-to-work travel and subsistence expenses.

Many supply agencies will try to insist that supply members are employed by umbrella companies. You do not have to agree to this and should ask to be paid by the agency on a PAYE basis if you wish. The NEU strongly advises members to be fully informed before entering into any formal contractual relationship with umbrella companies and also strongly advises members against working as a supply member under ‘limited company’ arrangements.

Where a member on a longer term supply engagement makes a positive impression, the school may want to offer them a permanent job. Supply agencies are permitted to charge transfer or ‘finder’s’ fees to schools in such circumstances. Two important conditions are: 

• The school must be given the option in the contract with the agency to decide, at the point when it decides to offer the member a permanent job, either to pay the fee or to continue employing the member through the agency for a set period after which it will not have to pay the fee.
• Transfer fees can only be charged if the transfer takes place within the later of 14 weeks from the start of the first assignment and eight weeks from the end of any assignment (see examples below). If there has been more than one assignment with a break of more than six weeks between assignments, the later assignment is taken as the first assignment.

Although transfer fees are often cited as a major obstacle to supply members gaining permanent employment, the conditions mean that transfer fees are slightly less likely to be enforceable in the schools sector than other areas of employment.

Calculating when an agency can no longer charge a transfer fee

Examples

Placement 1: Member A accepts an agency assignment from Monday 2 January to Friday 27 January (four weeks). Fourteen weeks from the start of the assignment is 10 April. Eight weeks from the end is 24 March. In this case, the later of the two dates is 10 April. The agency can charge a transfer fee at any point up to 10 April. After that date, no charge can be made.

Placement 2: Member B fulfils an assignment from Monday 6 February to Friday 14 April (ten weeks). Fourteen weeks from the start of the assignment is 15 May. Eight weeks from the end is 9 June – the later of the two dates in this example. No transfer fee can be charged after 9 June.

A break of more than six weeks between an agency supply member’s assignments for a school will have the effect of breaking continuity for the purpose of determining the 14-week period. In such cases, the first day after the gap ends becomes the starting point of the 14 weeks.

Under the Working Time Regulations 1998 workers are entitled to 5.6 weeks paid annual leave per year. In 2024 the government amended these regulations to allow organisations that engage people on an irregular-hours basis to choose to pay holiday pay as a rolled up additional payment paid at the same time as you receive your pay for the hours worked in any given pay period.

Your contract with your agency and your Key Information Document should set out your holiday entitlement and how this is paid. Your agency and/or umbrella company should be transparent about how you accrue your holiday and how it is paid to you. If you are unsure about how your holiday is accrued and paid, you can use our sample email to ask for more information about how your holiday entitlement has been calculated and paid since you signed up with the agency/umbrella company.

A Supreme Court decision in 2022 in the case of Harpur Trust v Brazel determined that, under the previous wording of the Regulations, all workers were entitled to (a minimum of) 5.6 weeks’ paid leave (after the first year of service), however the 2024 changes to the Regulations mean supply agencies can now legally pay ‘rolled-up holiday pay’ to agency workers.  The minimum rate at which holiday pay can be paid is 12.07% of the agreed rate and the Key Information Document/Pay Statements should make it clear how this operates in practice. It should not simply be part of the pay rate for the work done: it should be paid in addition to the hourly rate.

The government has published guidance on this change to the method of calculation.

Where the School Teachers Pay and Conditions Document (STPCD) applies to directly employed supply members, and agency members who have worked on one assignment or more in the same role with the same school or college for 12 weeks or more, holiday pay will be rolled up into the daily rate. Such agency and supply members must be paid on a daily basis calculated on the assumption that a full working year consists of 195 days; the daily rate, based on STPCD pay rates for teachers, includes an element of holiday pay.

If you ask your agency to explain how your holiday pay is calculated and you are still not clear or if you believe that you are being underpaid holiday pay, please contact us at AdviceLine. You will be asked to collate copies of your contract with your agency, your umbrella company if you have one, your Key Information Document if you have one, your pay slips illustrating how you are paid holiday pay, details of what hours and days you have worked with the agency, and copies of your email exchange with the agency about your holiday entitlement. You might be advised to make use of the AWR pay assessor to help produce a chart showing your working days. On the basis of your documents and working pattern and holiday pay arrangements, we will assess whether we believe that your agency has paid you correctly for your holiday pay and we will support you in securing what you are owed.

Use this model letter to clarify how holiday pay has been calculated by your agency.

From day 1 of an assignment, the hirer (i.e. the school) must provide you with equal access to collective facilities and amenities already provided for other employees, for example:

• access to canteen facilities, prayer room, staff common room, etc.
• access to transport facilities, e.g. local pick-ups.
• access to any car parking facilities.
• access to permanent vacancies (i.e. notification of vacancies and equal opportunity to access permanent employment).

Directly employed - the benefits

As employees, supply teachers will qualify for the numerous protections and benefits that arise from such status.

These include:

• pay in accordance with and by reference to the School Teachers' Pay and Conditions Document or the School teachers’ pay and conditions (Wales) document.
• membership of the Teachers' Pension Scheme (TPS).
• redundancy payments (after two years continuous service).
• protection against unfair dismissal (after two years of continuous employment).

These rights are the same as those enjoyed by directly employed teachers in the maintained sector in England and Wales.

Agency workers - the comparison

The position of teachers working for supply teacher agencies is less beneficial. Currently, these supply staff have no employment protection because they are not employed by the end-user (the school or college where they work). Their placement can be terminated, often without notice and with no right of challenge or redress.

Secondly, not being employees, they have no rights of equal treatment as to terms and conditions in comparison with their colleagues in the workplace, unless they have been employed by the same employer for twelve weeks.

Supply teachers employed through an agency can not join the Teachers' Pension Scheme (TPS). 

For these reasons NEU is campaigning for direct employment through supply registers and urging supply members to get involved.