Academy Schools: Contingent Workers and the Job Retention Scheme

A number of Academies have questioned how to deal with differing categories of casual, ad hoc or contingent workers in light of the Coronavirus outbreak. The whole purpose behind Procurement Policy Note 02/20 (PPN 2/20) is to ensure that anyone (an individual or a supplier) who is helped by this policy, is not then able to claim under another Coronavirus support scheme.

Below we look at three specific examples: agency workers, invigilators and staff who are not publicly funded.

Agency workers

As with all other issues raised here it comes down to looking at things on a case by case basis. This comes down to whether you have a contract or not. If you had a contract with an agency for a teacher to cover all of the summer term, then if that teacher is not able to work because the school is closed, you can pay the agency so long as you can confirm that the agency have not put their employees on furlough under the Coronavirus Job Retention Scheme (CJRS). If they have, then you should not pay the agency even though there is an ongoing contract.

If you are paying them, how much should you pay? Well the guidance states that you can pay them as normal for three months, which would cover the period up to end June 2020. This period may be extended. You can ask for evidence that the agency is continuing to pay its employees at any time whilst they are not working for you, as they should be operating on an open book basis with you during this time. If they make staff redundant or furlough them during the period you are paying, you can retain any future payments under the contract.

Where you have agency workers whose contract has come to an end, you do not need to continue to pay the agency. In this instance they can opt to furlough their employees under the CJRS if they want.

But, what if you have an open-ended contract with an agency which has no commitment to the number of temporary teachers? Whilst this seems unlikely, it is technically possible and there have been instance of agencies insisting that their contract with the school is like this. The guidance is clear here, if you have no contractual obligation to any regular amount, you should not pay the agency at this time.

Invigilators

In most cases any proposed assignment for invigilators will not be live. Even before lock-down we heard that public exams this year were not being held so we would suspect that many schools would already have put a hold on any invigilators’ bookings. Under PPN 2/20 it is quite clear that if a contingent worker is not on live assignment, then they should not be paid under that guidance.

It may be possible that a school does have contractual obligations for invigilators, which it entered before the announcement about exams was made. If this was via an agency, then the above section would apply. If these are with individuals, then you would need to understand whether they are at risk. Where invigilators are retired and in receipt of teachers or another pension, then it would be hard to argue that they are at risk if they are not paid for this work. If you do think the individuals are at risk then you should take legal advice on what your obligations might be and if you might pay up to the limit of 80% of gross pay up to the £2500 cap per month. Any other self-employed workers who worked for the school should be able to access support themselves through the Self-Employed Income Support Scheme.

Staff who are not publicly funded

What should schools do with staff who work in privately funded nurseries, or catering staff working in trading subsidiaries and other self-funded activities?

Where an employee has just one contract that is solely related to self-funded activities, then it is in order to look at the CJRS and consider furlough. However, we have come across an instance where some catering employees had two quite distinct contracts with the schools; one to run the kitchens for publicly funded school meals, and one to support the trading subsidiary in the café. In this instance, since staff are not allowed to do any work for their employees if they are furloughed, it was necessary to send them home on full pay on publicly funded contract and then furlough them on the work done for the commercial activity.

Staff such as teachers and other support staff who are publicly funded should be paid as normal during these very challenging times.

The above is general guidance which may not be suitable to your specific circumstances. If you would like further advice on these issues, please get in touch with our Academies team on 01903 234094.

A version of this blog originally appeared on the website of MHA member firm, MHA Macintyre Hudson.