The Association of Recruitment Consultancies (ARC) has received a response from the Department for Education (DfE) clarifying the department’s interpretation of R.3(2) of the Agency Workers Regulations (AWR), which allows professionals to be exempted from scope of the AWR. This follows the publication of amended guidance for teachers on the 18th November and inclusion of a new standard in the joint DfE/REC Quality Mark for Teachers, based on the interpretation, which would result in a total fail if a supply agency uses contracts with teachers on the basis that they are carrying on a profession under R.3(2).
The DfE’s interpretation is such that hirers of supply teachers, namely schools and LEAs, are not clients of the teachers as there is no business to business relationship and that the hirer exercises supervision and direction over the teachers who are therefore agency workers.
The ARC takes issue with this interpretation and argues that the decision to publish the DfE’s interpretation in its guidance and include a new standard in the DfE/REC QM was premature, and sets an unhealthy precedent in determining how new laws are applied.
“What appear to be legitimate means set out in regulations should not be excluded by decisions of the executive” explained Adrian Marlowe, chairman of the ARC. “We have obtained extensive advice on the issue of R.3(2) and its application. The fact that an individual is supplied to work under the direction and supervision of the hirer does not mean that R.3(2) cannot apply. In fact R.3(2) is there precisely to deal with cases where an individual is supplied to work under the direction and supervision of the hirer yet is carrying on a profession or business undertaking. There would be no need for R.3(2) where there is no supervision and direction by the hirer since the individual would not be an agency worker in the first place.”
“There seems no dispute that supply teachers are carrying on a profession, only whether the hirer is the client of the teacher. The Oxford English Dictionary defines a ‘client’ as ‘a person who uses the services of a professional’, leading to the conclusion that schools are the clients of supply teachers where the appropriate contract is in place.”
Since earlier this month the ARC has been seeking clarification and has urged the DfE to revisit its view.
Marlowe continued “At the very least there is a proper basis for argument. We would not want to see an extension of the idea that any government department or public sector body can interpret the law and cause the interpretation to be applied in this way in the absence of due process. Ultimately it is for the Courts to decide these issues. We have therefore called upon the DfE and the REC to remove the new standard from the QM.”
On the wider picture the ARC has called upon the government to set up a new fast track low cost procedure for a Judge to interpret new legislation where there is ambiguity or lack of clarity, citing the AWR as a case in point, without the need for any test case involving an individual.