A change in approach needed on agency supply advice

After the 'Post Office Scandal' - school managers need to stop and think too

Right now, everyone is talking about the 'Post Office Scandal', outraged at how a powerful organisation refused to accept their own failures and instead sought to bully their critics into silence. Thanks to the dogged determination of Alan Bates and other campaigners, the way that Post Office Limited, alongside Fujitsu and Government Ministers, refused to acknowledge the faults with the 'Horizon' IT system - and instead disgracefully pursued Subpostmasters through the courts - is now out in the open.

Mr Bates vs The Post Office. Produced by ITV studios and available to stream on ITV+

Perhaps the reason why this story has sparked such a widespread public reaction is because so many workers recognise something of that bullying approach in the way that they are treated too. And that includes school staff. Schools may not have pursued teachers into the courts like the Post Office, but every local union caseworker has had to deal with similarly broken colleagues, bullied out of their post under draconian threats of 'capability' procedures. More often than not, they have also had to sign a 'Non Disclosure Agreement' that stops them from talking out about how they have been treated.

Some school managers need to stop and reflect whether their practice needs to change. Are they just piling the pressure put on them via Ofsted and League Tables down onto their staff, pushing too many to breaking-point, when, instead, they should be standing up against the impossible demands put onto schools? 

Forced into insecure, underpaid, supply work

The impossible workload, and the hounding of staff by supposed 'support plans' and capability targets, is one (although certainly not the only) reason why some teachers end up working for privatised supply agencies. As someone whose own personal circumstances meant that I earned my living in this way for the last years of my teaching career, I know what a difficult way of earning an income this can be.

Work is uncertain, sometimes leaving you waiting for a phone call from the agency that never comes on a day you were hoping for work. Supply teaching is demanding, constantly having to plan and adapt, sometimes at very short notice, to different classes and different school systems. Worst of all, thanks to the privatised system of profiteering supply agencies through which most supply teachers are hired, you are working for less - sometimes far less - than the 'rate for the job' that would apply under statutory teachers' pay scales. On top of that, you have no access to the Teachers' Pension Scheme and no income to tide you over the school holidays.

That exploitation continues, despite the introduction of legislation fought for by trade unions that was meant to provide equal treatment. The Agency Workers Regulations (AWR), introduced in 2011, should guarantee that, after a qualifying period of 12 weeks in the same job, agency workers receive the same basic employment and working conditions as colleagues who have been recruited directly. But most agency school staff are still not being paid 'the rate for the job' that applies to directly employed staff under the Schoolteachers Pay and Conditions Document.

It's worth non-agency employees remembering that unions didn't push for AWR just to protect agency staff, but to protect permanent staff as well. After all, if employers can find a way to pay one section of the workforce on lower rates of pay, then, especially when employers are looking to cut costs, they will find a way to get rid of more expensive employees and employ cheaper agency staff instead. So demanding equal treatment for all staff is in everyone's interests, especially when schools are going to face more funding cuts, whoever wins the 2024 General Election.

Unions must also reflect on failings instead of just attacking critics

Sadly, recent events in the NEU suggest to me that some reflection is also needed at the top of my own union, the NEU. Just before the end of last term, the regular weekly bulletin emailed to NEU Officers carried advice which included the following about the "National Supply Teachers Network": "The National Officers have recently considered several complaints, queries and concerns from NEU members and local officers about the status of the National Supply Teachers Network (NSTN) ...  NEU members, branches and districts have been approached via NEU forums and encouraged to become members or to affiliate as a union group to the NSTN. Individual members have been encouraged to be represented in Agency Worker Regulations casework by the Network ... Branches should not refer any NEU casework to the Network".

I was not the only supply teacher who has worked with the NSTN to be angered by this advice. The NSTN is a group of activists who have been trying to support and advise supply staff for the past decade, and, yes, that has sometimes included representation, and, yes, has also included criticism of the Union. Whatever concerns Union officials might have about that, and perhaps the way that some of those criticisms have been raised, sending out a circular referring to unspecified "complaints, queries and concerns" gives no opportunity for those to be answered by the NSTN.

More to the point in the present context, rather than just attacking its critics, I think the NEU needs to reflect on whether the criticisms from the NSTN are justified. In particular, why are union members seeking advice and representation from an unofficial Network, rather than from the Union? If it's because the advice from the Union is inadequate, telling members that they haven't got a case when the Network can show that they have, then the answer is clear.

A meeting of the NSTN that I attended last night indeed suggests that the NSTN has been succeeding in cases where the NEU has not. A report was given outlining settlements won for members through the Agency Workers Regulations that have amounted to hundreds of thousands of pounds over the last few years. In recent weeks settlements had also been won using the "Harpur Judgement" over paid holiday entitlement. Many of these cases had only been taken up by the NSTN after members had previously being advised by the Union that they would not succeed.

Sadly, I am not surprised that supply teachers are sometimes being wrongly advised that they do not have a case under the Agency Workers Regulations. That's because I have been trying to point out the weakness of the AWR advice issued by the NEU to its caseworkers for several years.

Instead of attacking critics, the Union needs to reflect and consider its own failings.

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NEU Advice on Agency Workers Regulations - some thoughts:

For information, I am also adding here a copy of a letter that I sent in 2022, as requested from me as a member of the NEU's Supply Educators Organising Forum, about three parts of the AWR advice on the NEU website. I believe these concerns are still valid:

1) "The [AWR] comparison is not to the pay of an agency worker in a ‘comparable role’ – it is to the pay that the agency worker would receive if they were recruited to do the same role directly by the school. Where the supply teacher or member of support staff is on a daily contract, comparison will be to the pay of a supply worker engaged directly on a day-to-day basis. Where the duration of the engagement is agreed at the outset to be for a fixed or minimum period of, e.g. one term or one year, comparison will be with the pay of a teacher/member of support staff engaged directly on a fixed-term contract for the duration of the engagement".

First of all, I think to raise this comparison is at the very least unhelpful and, although I appreciate that there might be different legal opinions, questionable in its accuracy. Section 5 of the Agency Workers Regulations 2010 refer to “a comparable employee … engaged in the same or broadly similar work”. Yet, as the NEU website itself states in a later section entitled 'What is the ‘same role’?", "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 Regulations". Therefore, our starting point should be to stress that teaching is the "same or broadly similar work", whether carried out by an agency teacher, a supply teacher contracted directly, or those on a long-term contract. 

Secondly, and perhaps worst of all, the way that this paragraph is worded implies that a supply teacher employed directly on a day-to-day basis might be paid on a different salary scale to one paid on a fixed term contract. On what basis would that be the case and why would we raise it as a possibility on the NEU website? This advice potentially undermines the pay rates of directly employed supply teachers as well as agency teachers too. Again, the point is partly answered (and contradicted) by the later paragraph saying "Most school pay policies will not contain separate provisions on the pay of supply teachers engaged on a day-to-day basis ... the NEU will argue that this approach is potentially discriminatory on various grounds and should not therefore be followed ...So agency supply teachers are, after 12 weeks, entitled to be paid the same pay rate as if engaged directly as a supply teacher or as a teacher on a fixed term contract."

Instead of raising the damaging possibility that supply staff should be paid at a lower rate than those on long-term contracts, I would ask colleagues to consider wording along the lines that I have proposed in my admittedly unofficial advice sheets: "The pay and conditions that must be applied under the AWR are those that ordinarily apply in that school - i.e. the standard pay scales that apply to direct recruits. For agency teachers, the entitlement is to the teachers’ pay scales applying in that school".

2) "The school teachers’ pay and conditions document (STPCD) allows schools to decide for themselves how much they will pay newly appointed teachers – they do not have to pay newly appointed teachers at the same pay rate or pay point as in their previous school or in previous direct employment. Many schools follow NEU policy by adopting a school pay policy, which provides for pay portability, ie previous pay entitlements for experience, to be maintained for newly appointed teachers. Where a school pay policy is silent on the issue, it is possible to refer to previous pay decisions in order to infer a policy that should be followed in subsequent decisions. The NEU would therefore argue that an agency teacher who was employed on, for example, M6 or U3 in a previous permanent post should be paid at that same rate as a supply teacher. But that teacher would not be entitled to that rate after 12 weeks if the pay policy does not provide for pay portability or such a policy inferred from previous practice".

This is also unhelpful advice as it starts by raising the argument of the employers - that the lack of automatic 'pay portability' in the STPCD means the AWR does not apply - rather than starting by asserting the union argument in a far stronger fashion that this is not the case. Again, I would ask colleagues to consider wording along the lines that I have proposed in my unofficial advice, notably that:

* 'BEIS' advice “where a hirer has pay scales or pay structures” states clearly that "starter grades which apply primarily, or exclusively, to agency workers may not be compliant if not applied generally to direct recruits”. In short, if a school says it will only pay an agency teacher at, say, an M1 rate, then it will need to show that it also recruits new permanent staff at M1 too.

* To emphasise that a school can’t assert that “we can pay you what we want” if an agency teacher can show that, in practice, when it recruits permanent staff, it does take experience into account and starts them at higher points on its pay scale. We should advise that useful evidence for the agency teacher and their trade union rep to gather can include what the school pay policy says about starting rates for new recruits, what rates are being quoted in adverts for permanent teaching posts and evidence of pay rates that apply to those who have been appointed.

* It would also be useful to stress the point made in the Rush v Academics Ltd Tribunal that “[She] was entitled to have the benefit of a conversation with the [Agency] and the Trust at the 12 week mark as to what would have been the appropriate wage for her. She was denied that benefit” and that therefore the employer has a duty to justify at the 12 week point what rate it is now going to pay, and why.

3) "Schools are increasingly asking agencies to provide ‘cover supervisors’ whose roles do not include ‘specified work’ and who are therefore paid less. In circumstances where you are not undertaking specified work, there is no right to be paid the same rate as a teacher regardless of the fact that you are a qualified teacher".

This, again, is unhelpful advice. Yes, it is true that schools are attempting to undercut pay rates by arguing that supply teachers are not undertaking specified work. The NEU website should be boldly asserting that this is an argument that we do not accept and that the work being carried out by a supply teacher is, indeed, specified work requiring active teaching. Once again, I have tried to take up this argument in my unofficial advice. 

In particular, NEU advice should be pointing out that: DfE guidance on the Agency Workers Regulations states: “Teaching Pupils. If the school asks a temporary work agency to provide a teacher to carry out specified work in a school and the person engaged to do the work is a qualified teacher, they should be paid as a qualified teacher". 

We should assert that an agency teacher is hired to ensure that far more than ‘supervision’, only responding to questions ‘about process’, is taking place. As a qualified teacher, they will indeed be ‘actively teaching’, answering questions about ideas, explaining concepts, delivering lessons, assessing progress. They will indeed be carrying out activities that constitute “specified work” under the Regulations.

We should argue strongly that, to qualify for the AWR, the agency teacher will have been working on an assignment for over 12 weeks. Therefore, they will have been planning and preparing in order to be able to carry out their teaching work. Yes, they may be drawing on plans and resources provided to them, but that is simply recommended practice to reduce unnecessary workload.

In summary, I believe the current NEU website advice remains inadequate and I would ask that the relevant Executive Sub-Committee asks for a review of this advice, seeking the input of those elected to the Supply and Home Tutors' OF.