Furloughed teacher on long term supply; wages significantly decreased due to previous TA work

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Aplogies for the long title. I've posted this in the staffroom, but wondered if anyone here could offer any help.

I am wondering if anyone can offer my boyfriend any advice. He is an NQT, he signed up to agencies in September as he hadn't got a permanent post after qualifying. There was no supply in September. The week before October half term he was finally offered 1 days supply as a TA. From then until the christmas holidays he had odd days here and there as a TA and earned £700 over the 2 month period. He did this to try and get known at schools for a teaching job. This was successful, and in December he was offered a long term supply post as a teacher starting in January to cover mat leave. He was told they would put him through his NQT year. He was to be initially paid weekly through the agency until 11th May, whereby he would be on a contract with the school and paid a monthly salary through them.

Now we have covid-19.... he has today been told he has been furloughed. There are several issues within this. Firstly, he was due to do his week in school this week. He had a message to say not to come in last night as there were no keyworker children due to attend. This was 24 hours after he had hired a car at a cost of £100 to get him there as there was no public transport.

Secondly, he has been told that as he was furloughed today, he won't be paid for this week. No notice of no pay essentially. He has already had no pay for 2 weeks on Easter holidays.

Thirdly, the way the agency have said the furlough will be calculated taking his average weekly earnings not from the start of his long term contract, but taken from the very first days work he did as a TA for them. This takes his pay from £550 a week to £180 a week. A huge drop. He lives alone currently, paying rent. He looked in to benefits, but this wage puts him above what he could receive.

It seems dreadfully unfair and wrong on so many levels. He is emailing the union for advice, but as it might be some time before it elicits a response, he would like to see if anyone has any useful words of wisdom for him here

Here is the guidance for how agency worker earnings are calculated. An agency worker (like all other employees) is entitled to a maximum of 80% of that amount capped at £2,500 although the employer can top that up.

“If your pay varies and you’ve been employed (or engaged by an employment business in the case of agency workers) for a full year, employers will claim for the higher of either:

1. the amount you earned in the same month last year
2. an average of your monthly earnings from the last year

"If your pay varies and you’ve been employed for less than a year, employers will claim for an average of your regular monthly wages since you started work.

"If you have been working for less than a month, your employer will pro-rata your earnings from that month."

It is unfair but - to prevent fraud - hmrc can only use data relating to previous earnings. Not possible future earnings. Plus there is a lot if unfairness generally in how the assistance has been given - look at the cut off earnings for self-employed.

He should be paid from the first day of furlough though and it maybe worth speaking to the agency about the car. Did he cancel as soon as could re: that? The furlough plan won’t cover the car but the agency may make a contribution

Furloughed employees can still work in different jobs so it would be worth looking into that. The supermarkets still seem to be recruiting fairly widely.

Thank you for the advice.

I think where it seems to fall down is the fact that this is a long term assignment as a teacher, where as his previous earnings were simply ad hoc supply days, where I could understand the average calculation.

He has been engaged on a year long assingment from 7th Jan, with the same pay each week.

He can't chose not to go in, or which work to take. So it isn't like supply in that sense. It is a long term placement in one school. But he is being lumped in with everything else. He was due to be paid through the school as a member of their staff (not agency) from 11th May.

It doesn’t really matter what his individual circumstances are. He is classified as an agency worker by dint of his status - alternatively, he maybe employed by an umbrella company and assigned to various end client schools. Either way, the calculations above are how his earnings will be worked out and there won’t be a variation to that

It is definitely worth speaking to the Union too to see if they might be able to reach some kind of agreement for further pay but I think that would be highly unlikely as it would involve the school topping up or the agency and I can’t see why they would do that but it’s worth asking. That said, there is maybe something not included in the initial,post that could be material so hopefully the Union will pick up on it

If not, the best thing to do is to ensure the calculations are correct, see if he can reach some agreement about the car and look for another job to tide him over.

I know that sounds harsh but there are lots of others in the same or worse positions and there will be a run on the amount of available second jobs

I think everything has been calculated the way it should have been. My agency emailed me the way the are working out the furlough (see screenshot) and it's the same. Obviously we don't work every week on supply, that's part of what supply is and so our earnings are variable, sometimes I make £700, sometimes nothing so it's good for us that it's averaged.

The agency are the same employer that employed his when we was working as a TA and a a teacher so they can't just count it from January.

I do a lot of long term supply and whilst I understand what you mean when you say he can't just decide it to go in, technically he can when he's on supply. It's just morally he can't. Similarly you can be on a long term placement on supply for ages and ages and then they can just say 'we don't need you tomorrow' and that's it.

I've been at a school for the entire autumn term and on the Thursday in the penultimate week the head just said to me in the corridor 'we don't need you next week as it's just the nativities and craft so the TAs will be fine' and that was the end of that!

Update: He spoke to the deputy today (she is in charge). She said the Governers made the decision as they couldn't justify paying him. Even though he is budgeted for....
She said she didn't read the email from the agency thoroughly enough which said if he was furloughed his wage would essentially drop to 30%. She thought he would get the 80%. She went back to the governers who have now agreed to stop the furlough and reinstate him, however now they have said he can work 3 days instead of 5, with a daily rate of £100 instead of £110.

So good, well better than the furlough. But bad because it's still quite shitty treatment.

Spoke too soon. He has just had a message (this is probably quite outing but he no longer cares) to say that the deputy may have "spoken too soon as the governers aren't happy that the kodesh teachers are furloughed but not getting the 80% as their average earnings have worked out as less. They want to know if they could give you a lump sum of 1k so you have time to find something else".

It's a Jewish school (LA). Kodesh teachers were all furloughed as they are paid through charity donations from the parents which were no longer coming in.

He got a new contract from the agency a few hours ago after it was agreed for 3 days at £100. Now they want to go back on it? And what? Does he no longer have a job? Is that what the message means? And where do they think he is going to get a teachers job from in the middle of a sodding pandemic?

Utterly furious for him. He is being shafted completely.

I don’t think he is being shafted, sorry. The initial furlough calculation was correct, I’m not sure why you didn’t think it wasn’t. He can’t force them to furlough him so maybe the £1000 is the best route then get a job in a supermarket until schools go back.

Didn’t think it was.

He isn’t being shafted at all, it was all worked out correctly.

He's not being shafted. This has all been worked out correctly. It is an unfortunate set of circumstances that is affecting nearly everyone world wide

Call the umbrella company (it seems it is an umbrella company arrangement here) in he morning and clarify. I think £1k is actually very generous. They can either find him another assignment. It is less likely but schools are still open and/or he goes and quickly finds another job to top up

As his partner, it would be better to focus on supporting him to do something useful and positive like look for another job and focus on the positives (£1k is a hell of a lot more than lots of people will be getting) rather than spending time focusing on what cannot actually be changed.

You might not agree with the furlough rules but they are being applied correctly in terms of the averaging.

I don't really understand the rest of what's happening, he's obviously being messed around but I don't know if anyone is doing anything deliberately wrong.

This is a new situation for everyone and there are bound to be difficulties with employees who don't have standard work situations, maybe his union can help.

After reading NASUWT guidance for supply teachers, it seems he may have the right to equal treatment after 12 weeks. Which he has been there for longer than. How that works in practice he will have to await Union advice for.

The furlough calculation is no longer relevant to the current situation.

This is what we have read regarding treatment of supply teachers:

www.nasuwt.org.uk/advice/supply-teacher/agency-workers-regulations.html

The Agency Workers Regulations (AWR) were introduced in October 2011 to
ensure that agency workers are treated in the same way as directly employed
workers carrying out the same work after a 12-week qualifying period.
Definition of ‘agency worker’
An agency worker is defined in Regulation 3 (1) of the AWR as an individual who:
(a) is supplied by a temporary work agency to work temporarily for and under
the supervision and direction of a hirer; and
(b) has a contract with the temporary work agency which is:
i. a contract of employment with the agency, or
ii. any other contract with the agency to perform work or services personally
for the agency.

Ah, after many hours of reading the union website, we have found the information to show that he should be treated the same as a comparable employee after a 12 week long term supply contract. I've attached the screen shots for anyone who is searching for the same information.

Hopefully with the union support, he will have a better position to negotiate from. Or better still, remain paid as other teachers are.

As an agency worker supplied via an umbrella company (which is the employer and seems to be your partner's situation) the AWR do generally apply. However, the end user - school - can still terminate the assignment which is what they seem to want to do. Your partner still remains the employee of the umbrella company who would then look for another assignment for him.

I'm not sure what your point is re the AWR? Are you saying he has been underpaid? Pay is based on the role carried out - he seems to have been both a TA and a teacher so the pay will be different for each role and based on experience etc. Free schools etc can set their own rates of pay and don't have to follow national scales. Or are you saying that the school is not allowed to terminate the assignment as he is an agency worker? The AWR does not preclude that

I think the best thing to do is speak to the umbrella company and the union. I think the 1k offer is generous so I would try to do what you can not ensure that's not lost

Is your partner not working for essentially a private school though as you mention in your previous post above that teachers are being paid via private donations from parents? The union example is regarding schools that receive continued government funding in full. Is that the case with this school? If not, that argument (and it is just an argument - I can think of various ways it could be mitigated at a Tribunal hence why the union advice is caveated) wouldn't apply. It is based on ongoing government funding. If that does apply, then there maybe an argument but the school can still chose to terminate an assignment. Even if they do decide to keep paying. I think they could argue that the May time (when they planned to.employ him directly it. seems?) is a natural break. It would be worth calculating if he will get more than the 1k and, if not, take it.

I just lost my last message!!

To succinctly answer. It's an LA school of Jewish faith. His pay is funded through the LA budget.

He would have been due £1650 in pay up until 11th May.

He has proof of the assignment being until July, the agency have confirmed they also have this proof. His contract for the "new" (now reneged) agreed rate of pay and days of work is specific to take him to July. This was what was agreed at 5pm today.

I am interested in how the 12 weeks applies in practice - especially as the union are suggesting that he should have the same right to pay as a comparable teacher. It seems he should have a better level of protection on a long term contract than the school currently seem to think. The union do seem to be keen to help teachers in these positions. Hopefully he will get a response shortly, as he no longer wishes to engage in a discussion without union advice/representation.

As a temp employee it's not the schools responsibility. Sorry but as a gov we also had to go back on an agreed contract with a supply teacher as we can't justify spending public money on someone to sit at home when there is no work for them. (We can manage at the moment with the permanent staff). The 'benefit' of being a supply teacher is also the detriment at the point for him. If the wages are worked out on previous earnings then you can't change the calculation based on what might happen in the future. If schools start to partly reopen after half term he may be able to pick up more supply work. Or he can spend this time looking for an NQT year to start in September.

Had that supply teacher been there longer than 12 weeks?

I thought you said he'd been there since January 7th? That's not more than twelve weeks between January 7th and when the schools closed is it?

I

He has. His school has been open for keyworkers, and he was working up til 11am 20th April. Taking off the 3 holiday weeks in the period, his 12 weeks were completed week ending 3rd April.

Regardless of school closures, he has been working and employed continuously for 12 weeks, with the 3 weeks total holidays deducted.

From my calculations if he started on 07/01/2020 the 12 week mark would be 21/04/2020 for a 2 week holiday or 28/04/2020 for a 3 week holiday, neither of which come to 12 weeks. I'm not sure how you got 3rd April including the easter break?

I'm not sure how you are working your calculation. I've screen shot to show each friday of each week marked off, you only need to work part of weeks, as long as you work in each week. I've left feb half term fri blank.
Friday 3rd April was the 12th week completed. No need to take off 2 weeks for easter, as the 12 weeks were completed by then.

Forgot the screenshot