The Facts

4 Recruitment Services Limited, a temporary work agency, supplied the claimant nurse, Ms Donkor-Baah, to University Hospitals Birmingham NHS Trust (the NHS Trust), the hirer, to work nursing shifts in a hospital. Ms Donkor-Baah booked her shifts with the hiring NHS Trust on a shift by shift basis. Following an alleged incident during the night shift on 10 February 2019, at 2.30am, Ms Donkor-Baah was told to end her shift early and go home. Her case was that she was suspended at this point, that her suspension continued until 6 November 2019 when she was told that she could re-commence booking shifts with the Trust and that she was entitled to be paid for this period of suspension pursuant to regulation 5 of the Agency Workers Regulations 2010. She represented herself, and the basis of her argument was that the NHS Trust's own employees or workers would have been paid during a period of suspension. Both the agency and the NHS Trust disputed her claim, contending that her assignment with the NHS Trust had terminated when she was sent home at 2.30am on 10 February 2019 and that, accordingly, she could not have been suspended by the NHS Trust after this date as it had no ongoing relationship with her.

The Employment Tribunal found that Ms Donkor-Baah's assignment was terminated when she was sent home at 2.30am on 10 February 2019 and that, accordingly there was no suspension of her relationship with the NHS Trust. On this basis her claim for suspension pay had no reasonable prospects of success, and the employment tribunal struck out her claim. She appealed to the EAT where she was represented by counsel.

The appeal did not positively challenge the employment tribunal's conclusion about the termination of her assignment. The argument on appeal, which was unsuccessful, was that read together, regulations 5, 7 and 8 of the Agency Worker Regulations 2010 gave rise to an overarching "Agency Relationship" between an agency worker and a hirer, that was capable of subsisting beyond individual assignments and that it was this relationship which had been suspended by the NHS Trust.

In upholding the employment tribunal's decision the EAT found that the entitlements conferred on agency workers by regulation 5 of the Agency Worker Regulations 2010 relate to the period of an assignment when the agency worker is working for the hirer. This is apparent from the nature of the entitlements, the language of regulation 5(4), the scheme of the Agency Worker Regulations (which defines an agency worker in regulation 3(1) by reference to their supply to a hirer and in terms consistent with the definition of "assignment"), and the terms of the EU Directive on Temporary Agency Work, which the Agency Worker Regulations implement. Furthermore, regulations 7 and 8 do not support the existence of the alleged overarching "Agency Relationship".

What this means for employers

This is a previously untested area of law, and the decision will come as a relief to organisations who hire large numbers of agency staff. A decision that agency workers hired on a shift by shift basis were entitled to suspension pay in the same way as direct hires would have had significant cost implications for hirers.

Ms Donkor-Baah v University Hospitals Birmingham NHS Trust and others