Key Facts
- •Emelia Donkor-Baaah (claimant) was an agency nurse supplied by 4 Recruitment Services Limited (R4) to University Hospitals Birmingham NHS Trust (R1).
- •She worked shifts on a shift-by-shift basis, not a block booking.
- •Her shift on February 9-10, 2019, was ended early at 2:30 AM.
- •She claimed she was suspended until November 6, 2019, and entitled to pay under Regulation 5 of the Agency Workers Regulations 2010.
- •R1 and R4 argued her assignment ended at 2:30 AM on February 10, 2019, and there was no subsequent suspension.
Legal Principles
The Agency Workers Regulations 2010 (AWR) must be interpreted in line with Directive 2008/104/EC on Temporary Agency Work (AWD).
Angard Staffing Solutions Ltd v Kocur [2022] ICR 854
Regulation 5 AWR rights relate to the period of an assignment, when the agency worker is working for the hirer.
This case
An objective test should be applied to determine whether a contract of employment or, in this case, an assignment has been terminated.
Willoughby v CF Capital plc [2011] EWCA Civ 1115
The suspension of an agency worker is qualitatively different from the suspension of a directly employed worker; there is no automatic right to pay during a suspension for agency workers outside the terms of their contracts.
Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust [2022] IRLR 115
Outcomes
Appeal dismissed.
The Employment Tribunal (ET) correctly found the claimant's assignment ended at 2:30 AM on February 10, 2019. There was no overarching 'Agency Relationship' extending beyond individual assignments that could support a claim for suspension pay under Regulation 5 AWR. The claimant's rights under the AWR were limited to the period of her assignment.