Questions remain over whether exam invigilators can be furloughed under the Government’s Coronavirus Job Retention Scheme (CJRS). Phillip Reynolds and Louise Brenlund offer some advice

The answer to whether invigilators can be furloughed will largely rest on whether they are employed via an agency or directly by a school under a zero hours contract.

The DfE’s guidance suggests that where schools have agency workers on live assignments who can continue to work, they should continue to make agreed payments to agencies and the agency should not furlough these workers.

Most exam invigilators, however, are unlikely to be on a live assignment and, therefore, the agency as the employer can consider the CJRS.

Government guidance also suggests that zero-hours contract workers are eligible under the CJRS and that all other guidance published applies to those cases and should be followed.

However, and here is where perhaps confusion has arisen, DfE guidance published on 17 April confirmed that local authority maintained schools, including academies, will continue to receive budgets for the coming year regardless of any closure. Staff whose salaries are funded in this way will not have access to the CJRS and therefore cannot be furloughed.

Unless a school can show that there is a separate and private income stream to fund invigilators, we do not think the CJRS can be relied upon.

There is no guidance to suggest how pay should be calculated

But things are not so clear cut. Guidance issued by ASCL suggests that exam invigilators who have been issued and accepted work for the summer of 2020 should be paid. However, there is no guidance to suggest how this should be calculated.

Separately, for invigilators engaged under zero hours contracts, there is no obligation to offer or accept work. Where no offer and/or acceptance has taken place, the school would be entitled to say that there is no work and, therefore, no obligation to pay an exam invigilator engaged in such a way.

Further, and taking account of on-going public funding, education establishments are expected to have adequate and effective governance arrangements in place to ensure that public funding is spent effectively and appropriately. The Academies Financial Handbook sets out to ensure regularity, propriety and value for money in the organisation’s activities. All are arguments that lend support to the interpretation that it would not be in the financial interests of the school to pay exam invigilators who have no work to undertake.

There is, however, a strong counter-argument. Schools receive government funding each month to help towards overall costs, including exam costs. Schools will have already accounted for these costs in their 2019/20 budget. Therefore, with invigilator costs already covered they should continue to be paid even if there is not the need to carry out work. This is in line with the ‘spirit’ of the Government’s decision to continue providing full funding to state-maintained schools.

Schools that take a view that they are not obliged to continue to pay exam invigilators engaged on zero hours contracts may face difficulties in subsequent years. If those individuals are trusted and reliable invigilators engaged year upon year, taking a decision not to pay them may mean they would not be prepared to work for the school again, and translate into the loss of a valuable resource.

If the decision taken is to continue to pay exam invigilators, the question is then how much?

There is no legal formula or guidance as to how to calculate pay rates. Arguably, if you have budgeted for those costs at full rate of pay, you should pay as budgeted.

Alternatively, schools may echo the furloughed rates of 80 per cent based on the formula for employees whose pay varies, or choose an alternative basis which it could argue is a reasonable means of assessing pay (ensuring it is reflective of good HR practice and minimises risk of arguments of discrimination). Suggestions have included pay based on the hours they would have worked this year or based on the hours worked in the previous year. There is no right or wrong way of doing this.

Whatever route chosen we would recommend recording why you have chosen this method and make it clear that this is being done as a gesture of goodwill and not because there is any contractual right or because the individual has been furloughed.

In summary, there is currently no clear answer to this question with guidance being constantly updated. It is important to keep your position under review and, before making any final decisions, taking appropriate advice.