Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust: EA-2020-000413-VP

Appeal by a ‘bank’ worker healthcare assistant against ET decision that he was not entitled to average wages during a suspension period, so long as there was work available to do.

The claimant was a healthcare assistant who provided his services as a “bank” worker. Under the express terms of his contract the respondent was not obliged to offer him any work at any time, and he was not obliged to accept any assignment in fact offered to him. The claimant was suspended for several months by the respondent while an allegation of misconduct was investigated and he was treated as not eligible to be offered any work. The claimant presented a claim for unlawful deduction from wages, on the basis that there was an implied term that he was entitled to be paid average wages during the suspension period, so long as there was work available to do but the ET rejected that claim.

HHJ Auerbach upheld the decision of the ET. He contrasted the claimant’s contract, which only expressly obliged the employer to pay him in respect of a period during which work had been specifically offered and accepted, with the facts in Rice Shack Ltd v Obi, where an obligation to pay had been conceded, and North West Anglia NHS Foundation Trust v Gregg, as it concerned the position of a suspended permanent employee. On consideration of the authorities, the proposed implied term was not one that arose from an application of the common law principles of implication of contractual terms.

Published: 03/10/2021 11:50