The Department for Education has revised its Agency Workers Regulations guidance, first issued in August 2011, to state its view that teachers cannot be outside the scope of the AWR using the professions exclusion at R.3(2). This view is made on the basis that “the relationship between hirers and agency teachers is not a ‘business to business’ relationship”, although the words ‘business to business’ do not appear in the regulation itself.
Whilst the guidance and the press release that accompanies it have made it clear this is only the department’s interpretation and “it is for the Courts to make an authoritative decision”, the DfE has agreed with the Recruitment and Employment Confederation that the ‘Quality Mark’ given to teaching agencies will not be awarded to those agencies offering or using the professions model.
Adrian Marlowe, Chairman of ARC, said “Given that there are differing legal opinions on this, we are surprised to learn that both the DfE and REC are throwing their combined authority behind a single interpretation of the regulations. By taking this stance they risk disenfranchising a large number of experienced teachers from the agency market. Before the profession model is excluded from any sector, should the correct legal determination not be established?”
ARC has written to the Department of Justice suggesting a short court process for determining the meaning of words in new legislation wherever they are confusing and/or ambiguous, citing the Agency Workers Regulations 2010 as a classic example. It hopes to avoid years of wrangling over phraseology and at the same time establish a driver for improving the drafting of new laws. This would save significant costs for businesses.