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Agency supply teachers are entitled to the same pay as permanent teachers

Schools frequently use supply teachers as cover for permanent teachers. If agency supply staff are employed beyond a twelve week qualifying period they must be paid the same salary and benefits as permanent staff.

There have been few reported cases on the Agency Workers Regulations 2010 (“the Regulations”). In the case of Ms Stevens v Northolt High School - the Employment Tribunal found that the school, who had used a supply agency to hire Ms Stevens, was liable for over £10,000 arrears in pay. 

The Regulations provide a number of rights to agency workers, including supply teachers, when they are hired through an agency. Some of these rights (including the right to be provided with information about vacancies) must be provided from day one. A number of other rights come into force after a twelve week qualifying period. One of the rights that begins after the twelve week qualifying period is that the agency worker is entitled to the same pay as an employee directly recruited by the hiring organisation - in this case the school. 

If the agency worker receives less than their entitlement, then both the agency and the hirer (the school) are potentially liable for a breach of the Regulations. The agency can avoid liability if it has either obtained or taken reasonable steps to obtain information about the terms and conditions of a comparable employee directly employed by the hirer.

The facts of the case

In this case the hirer was a permanent teacher and Ms Stevens was paid a daily fee by the agency.  The fee that she was paid was £98 per day less than the school would have paid a member of staff that they had directly employed. This was also £25 per day more than the fee that the agency received from the school. 

The agency had requested on a number of occasions for the school to confirm how much a directly employed member of staff would have been paid. The school failed to provide this information to the agency. 

The hearing

By the time the case came to a hearing Ms Stevens had worked for 111 days (after her twelve week qualifying period) and was therefore entitled to £10,878. 

The Tribunal considered the situation and the fact that the school had failed to respond to the agency when it had requested this information. The Tribunal decided that the school was solely responsible for the infringement of the Regulations and ordered the school to pay Mrs Stevens in full for the £10,878 under payment. 

What can be learned?

There are two important lessons (no pun intended) for schools arising from this case.

  • Firstly, it is very important to ensure that the terms and conditions of business that schools have in place with hirers have indemnities in the school’s favour. Schools should not simply agree to the standard terms and conditions of business of teacher supply agencies. Advice should be taken in relation to these to ensure that the school is properly protected.
  • The second lesson from this case is that supply teachers (or other agency staff) supplied via an agency need to be provided with the same pay and benefits as directly employed staff if they remain employed following the twelve week qualifying period. 
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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Andrew Chamberlain

Partner - Head of Employment & Chair of the SDE

I am a Partner, the National Head of the Employment Team and the Chair of the Service Delivery Executive (SDE), which is focused on building better solutions for clients.