Donkor-Baah v University Hospitals Birmingham NHS Trust & Ors [2024] EAT 23

Appeal against the rejection of the Claimant's claim that was based on the Agency Workers Regulations. Appeal dismissed.

The Claimant was a nurse. R4 was a temporary work agency who supplied the Claimant to R1, the hirer, to work nursing shifts in a hospital. The Claimant booked her shifts with R1 on a shift by shift basis. Following an alleged incident during the night shift on 10 February 2019, at 2.30am the Claimant 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 R1 and that she was entitled to be paid for this period of suspension pursuant to regulation 5 AWR, as R1’s own employees or workers would have been paid during a period of suspension. R1 and R4 disputed the claim, contending that her assignment with R1 had terminated when she was sent home at 2.30am on 10 February 2019 and that, accordingly, she could not have been suspended by R1 thereafter, who had no ongoing relationship with her. The ET found that the Claimant’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 R1 and her claim under the AWR for suspension pay had no reasonable prospects of success. The Claimant appealed.

The EAT dismissed the appeal. The entitlements conferred on agency workers by regulation 5 AWR 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 AWR 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” in regulation 2, and the terms of Directive 2008/104/EC on Temporary Agency Work, which the AWR implements. Furthermore, regulations 7 and 8 do not support the existence of the alleged overarching “Agency Relationship”.

Published: 08/04/2024 14:08

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