This was the decision of the Employment Appeal Tribunal (EAT) in the recent case of Donkor-Baah v University Hospitals Birmingham NHS Trust and others. The EAT determined that, based on the specific circumstances presented, Ms Donkor-Baah, who was employed as an agency worker by the Respondents, did not have the right to receive suspension pay between the end of one assignment and the start of another.
Factual background
From 2017, Ms Donkor-Baah was employed as a staff nurse agency worker across hospital trusts whereby each shift was considered a separate assignment. On 10 February 2019, following an incident during one of her nightshifts, Ms Donkor-Baah was instructed to leave early while the incident was under investigation. For approximately the next seven months, whilst the investigation took place, she did not receive any shift assignments and, consequently, was not compensated during this time. Once the investigation concluded, in November 2019, she was permitted to resume booking shifts on the same shift-by-shift basis that she was using previously.
Ms Donkor-Baah argued that this seven-month “break” amounted to a suspension and so she was entitled to full pay during the suspension, relying on her Regulation 5 right under the Agency Workers Regulations 2010 (AWR) to the same working conditions as directly recruited workers at the Trust. Regulation 5 states that after 12 weeks’ continuous service, agency workers are entitled to the same pay terms as direct employees. Ms Donkor-Baah contended that she was in an overarching “agency relationship” with the Trust which persisted beyond each individual assignment, and that the suspension of this relationship by the Trust warranted her payment.
An employment tribunal struck out this claim, finding that it had no reasonable prospects of success. Ms Donkor-Baah appealed to the EAT.
The EAT decision
The EAT upheld the employment tribunal’s decision by ruling that Ms Donkor-Baah did not qualify for pay during the investigation period as her assignment was terminated on 10 February 2019. When assessing the presence of an overarching agency relationship, the EAT referred to Regulation 5 and determined that the “12-week rights” only apply to times when an agency worker is actively engaged on an assignment for a hirer. These rights do not cover periods when the worker is not on assignment.
The EAT held that this interpretation is supported by several factors:
- the language of Regulation 5(4), which necessitates a comparative analysis when both the agency worker and the employee are “working for and under the supervision and direction of the hirer”;
- the specific entitlements addressed by Regulation 5 pertain to fundamental working and employment conditions;
- the structure of the AWR, which characterises an agency worker in Regulation 3(1) with reference to their provision to a hirer in a manner that aligns with the “assignment” definition in Regulation 2; and
- the phrasing of the EU Temporary Agency Work Directive, which the AWR enacts, that explicitly mentions equivalent basic working conditions “for the duration of their assignment”.
As such, the EAT observed that Ms Donkor-Baah’s assignment concluded on the day she was sent home and she did not undertake further assignments until November 2019. Therefore, she was not considered a worker during this interval and was not eligible for pay.
The EAT also commented on the complexity of applying the concept of an overarching relationship in reality, especially when an agency worker is assigned to various hirers, which is often the case. Agency work can be sporadic and temporary in nature, which often leads to disputes such as this where there are gaps between assignments or those assignments are paused, cancelled or amended.
The full judgment on this case can be reviewed here.
