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Donkor Baah v University Hospitals Birmingham NHS Trust and others

Written by JMW Solicitors LLP

What happened in this case?


In this case, the Claimant was engaged as an agency worker, to work as a nurse at the University Hospitals Birmingham NHS Trust (‘the First Respondent’). She booked shifts directly with the First Respondent, and was paid on a shift by shift basis.


An incident occurred in February 2019 in which she was instructed to go home by the First Respondent. She was later told in November of the same year that she could commence booking shifts with them again.

Pursuant to the Agency Workers Regulations 2010 (‘AWR’),  after 12 weeks of continuous service, the agency worker is entitled to the same pay terms as direct employees of the hirer. The Claimant brought a claim in the Tribunal that she should have been receiving suspension pay during her absence, as any other permanent employee would have been entitled to in similar circumstances. Her claim was rejected and it was held that entitlement to the same pay terms only extends for as long as the employment term, which in this case, was the end of the shift. In essence, the Tribunal accepted the Respondents’ arguments that the Claimant’s assignment with the First Respondent terminated when she was sent home on 10 February 2019, and that she accordingly could not have been suspended.


The Claimant then appealed to the Employment Appeal Tribunal (‘EAT’), asserting that when Regulations 5,7 and 8 of the AWR are read together, they form an over-arching agency relationship between the worker and hirer, which extends between assignments. The EAT upheld the Tribunal’s decision and found that if an agency worker carried out individual shifts, the protections under the AWR would not extend beyond that shift. The EAT stated that Regulations 7 and 8, which make reference to discrete assignments, do not support the existence of an overarching agency relationship.


Which provision of the AWR were in dispute in this case?


The main provisions of the AWR in dispute in this case were Regulations 5, 7 and 8.


Regulation 5(1) states that an agency worker will be entitled to the same “basic working and employment conditions” as an employee directly engaged by the hirer. The meaning of “basic working and employment conditions” has been clarified through case law, and includes matters relating to pay, working time, and annual leave.


Regulation 7 says that Regulation 5 only applies to agency workers if they have worked in the “same role” for the hirer for a continuous period of 12 calendar weeks, which may include one or more assignment.


Regulation 8 states that the rights under Regulation 5 will continue unless there is a break of more than 6 calendar weeks during or between the agency worker’s assignments for the same hirer, or that the worker is not working in the same role.


What does this mean for sectors which use agency staff?


As an EAT Judgement this decision is binding on first instance Tribunals, is helpful to hirers and agencies who face complaints from agency workers that they are entitled to various types of pay, such as suspension pay or sick pay, between assignments. It is also beneficial to large-scale NHS employers who rely on engaging with agency workers, rather than directly employing permanent staff, and the recruitment businesses who supply these workers.

Should the Tribunal and EAT have decided differently on this matter, then this would have placed a large financial burden on the First Respondent to pay full “suspension” pay in the region of 9 months’ pay to the Claimant. Understandably, businesses which engage with large volumes of agency staff would have been critical of an alternate judgment and would have argued that it doesn’t support the principles under the AWR. Whilst the Claimant in this case would have not been able to engage with the First Respondent for a period of time, she was free to undertake agency work with other hirers and she importantly was not prohibited from working elsewhere, which contradicted her assertion that she was placed on “suspension”.


Whilst there is a clear need to ensure that agency workers are adequately protected under the AWR, such a need must be carefully balanced with the ability for employers to engage with staff flexibly, rather than directly employing permanent staff. The AWR was made domestic law following the EU Temporary Agency Work Directive, deliberately caveats the right contained within Regulation 5 to subsist during assignments only. In order to avoid disputes at a later date, hirers often issue clear terms and conditions of the engagement which specifies that the protections under AWR only apply during periods of assignments and shifts, and that no protections will be afforded in between periods of assignments.