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Was an agency worker entitled to 'suspension pay' in between assignments?

In the case of Donkor-Baah v University Hospitals Birmingham NHS Trust, the Employment Appeal Tribunal (EAT) has dismissed an appeal brought by an agency worker challenging a Tribunal's decision to dismiss her claim for suspension of pay between the termination of one assignment and the commencement of the next.

The Claimant (DB) was an agency worker employed as a staff nurse and commenced work at the hospital trust in 2017. DB booked her shifts on a shift-by-shift basis. Following an alleged incident on 10 February 2019, DB was instructed to end her shift early and go home. Her case was that she was suspended at this time and that her suspension persisted until 6 November 2019, when she could resume scheduling shifts. She argued that she was entitled to receive compensation for this suspension period in accordance with Regulation 5 of the Agency Workers Regulations 2010 (AWR). This states that after 12 weeks of continuous service, agency workers are entitled to the same pay terms as direct employees. DB's argument therefore rested on the fact that as the hospital trust's own employees or workers would have been remunerated during any period of suspension, she was entitled to receive the same.

In the first instance, the Tribunal found that DB's assignment had been terminated when she was sent home on 10 February 2019. Thus, there was no suspension of her relationship with the hospital trust and her claim under the AWR lacked any reasonable prospects of success. On appeal, the EAT later confirmed that no overarching 'agency relationship' existed during this transitional period. The entitlements conferred on agency workers by Regulation 5 AWR relate to the period of an assignment where the agency worker is actually working for the hirer and does not impose an ongoing obligation where the assignment has been terminated.

Consequently, the ET's original decision was affirmed, and DB was not deemed to have been suspended during the period between the assignments, due to the absence of an ongoing relationship between the agency worker and the hirer. The Tribunal's decision to strike out the claim for suspension pay pertaining to this period was therefore deemed appropriate, on the grounds that the claimed lack of any reasonable prospects of success associated with.

Whilst this recent case was outside of the education sector and related to nursing staff, arguably the same principles could apply to education providers and the relationships they have with casual and/or agency staff. For example, cover teachers, especially those employed by an agency and who have a similar working relationship to that described above, may encounter circumstances akin to those that faced DB and could try to argue that they have rights and certain benefits, such as suspension pay, in between assignments. Helpfully this case favoured the employer and the notion that in between assignments agency workers do not have employment rights akin to permanent employees which is welcome news. However it is a further reminder of the complexities around employment status and engaging with casual staff, and our advice remains that Schools and Trusts ensure that engagements are well documented with clear expectations from the outset, and that regular reviews of the level of engagement with agency staff and whether the associated paperwork is fit for purpose are carried out.

For more information contact Laura McHugh in our Education department via email or phone on 0161 918 0008. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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