It may seem a blatant disregard for the law. But TES can reveal that one of the UK's largest teacher supply agencies has suggested that headteachers may ignore controversial new European regulations brought in to give cover staff equal pay by promising to foot the bill for any fines or legal action brought against them.
Protocol Education, which works with approximately 1,800 schools every week, has suggested to its clients that they do not need to worry about the Agency Workers Regulations (AWR), and has said it will indemnify them in the event that supply teachers take them to an employment tribunal.
The regulations, which came into effect at the beginning of this month, afford all temporary staff the same pay and working conditions as permanent staff if they work 12 continuous weeks. Heads and supply teachers have warned that this reform will drive up the cost of employing long-term classroom cover and drive down the amount of work available to supply teachers.
But Protocol is encouraging its client schools to break the new rules - despite risking fines of up to #163;5,000 - as it has undertaken to cover the costs of penalties, back pay and even employment tribunals. In a newsletter to schools, the recruitment agency makes its stance clear. "The regulations are complex," it says. "However, so you do not need to worry about AWR, Protocol Education will indemnify all schools who use agency workers, supplied by us, against the cost of any AWR claims upheld at a tribunal. So, there is no risk to you as a result of the AWR regulations if you use a candidate from Protocol Education."
The company also tells its clients that it will set pay rates for the teacher role required rather than the pay scale of the supply teacher, as legally required in maintained schools.
This strategy is not without its risks. Yvonne Gallagher, head of employment at City law firm Lawrence Graham, said Protocol was within its rights to offer indemnity to schools, but suggested the move was questionable. "An agency can indemnify the regulations like this, but it will not stop an individual from bringing action against a school," she said. "And it is very bad publicity for a school to be taken to tribunal."
"The indemnity also relies on the company staying in business," Ms Gallagher added.
When the regulations were brought in, many supply teachers believed they would level the playing field for cover staff who often receive 20-30 per cent less pay than permanent staff. But many fear the move could lead to schools with shrinking budgets hiring fewer casual workers.
Protocol's decision to pay any legal bills or fines has been condemned by teaching union the NASUWT, which campaigned vociferously for the introduction of the new regulations at a time when there were strong indications that the Government was thinking about dropping them before their adoption.
Indeed, the union's general secretary, Chris Keates, said the move was "symptomatic" of the culture created by the Coalition where "workers have no rights and entitlements" and these rules can be "flouted and ignored".
"The fact that agencies feel confident enough to make such offers proves the point," Ms Keates said. "Supply teachers are already exploited by unregulated and unscrupulous agencies and some schools compound their situation by tolerating and becoming engaged in the poor employment practices they advocate."
Protocol declined to comment.
Barbara Edwards is a retired teacher who has come to rely on supply work to make ends meet.
Ms Edwards said other supply staff at her agency were offering to cut their pay from #163;120 to #163;80 a day in a bid to remain attractive to schools after the new regulations were introduced.
According to Ms Edwards, the agency now runs two registers of supply teachers: one listing those willing to work for #163;80 a day and the other for those staying on #163;120.