Ms J Rush v A-Day Consultants Limited t/a Academics — 2021

Ms J Rush was engaged by A-Day Consultants Ltd t/a Academics Ltd as an agency worker and placed with Arbor Trust as a qualified Primary Art Teacher from September 2019. The tribunal found that after the 12-week qualifying period under the Agency Workers Regulations 2010, she was entitled to the same basic working and employment conditions as if she had been directly recruited by the hirer. The dispute was not whether her pay should be adjusted, but whether the correct direct-hire equivalent was M1 or the higher U1 rate.

The tribunal accepted that the claimant had previously been paid at U1 in a permanent post at St Aubyn’s School and found that she was a post-threshold teacher. It placed weight on the Trust’s pay policy, which stated that it was committed to pay portability, and on the August 2020 advert for a Primary Art Teacher, which showed a salary range capable of reaching the upper pay scale. The tribunal rejected the respondent’s case that the claimant should be treated as if she were newly qualified or confined to M1, and found there was no basis for requiring her to re-apply through a threshold process at the Trust.

The tribunal held that the respondent unlawfully deducted wages by paying the claimant at M1 after she raised her rights under the Agency Workers Regulations. It concluded that, as a post-threshold teacher, she should have been paid at U1 for the period from 1 January 2020 until she left in July 2020. Liability was determined at this hearing only, and the amount due was left to a separate remedy hearing because the parties disputed the figures.