EAT clarifies limits of agency workers' entitlements under AWR in Emelia Donkor-Baah v University Hospitals Birmingham NHS Trust & Ors

Citation: [2024] EAT 23
Judgment on

Introduction

In the Employment Appeal Tribunal (EAT) case of Emelia Donkor-Baah v University Hospitals Birmingham NHS Trust & Ors ([2024] EAT 23), significant legal discussions centered on the entitlements of agency workers under the Agency Workers Regulations 2010 (AWR), particularly in relation to the concept of ‘assignment’ and the implication of an overarching ‘Agency Relationship’ subsisting beyond individual assignments. This case shines a light on the distinction between the suspension of a conventional employee and the circumstances in which an agency worker’s ‘assignment’ can be considered terminated.

Key Facts

Emelia Donkor-Baah, the claimant, contended that following an incident during her shift, she was suspended and as a result, entitled to be paid for the period of suspension under Regulation 5 of the AWR. Both the first and fourth respondents, University Hospitals Birmingham NHS Trust and the temporary work agency respectively, opposed this claim, asserting that the claimant’s assignment had ended when she was sent home, and thus no further relationship existed that could be subject to suspension. The ET found in favour of the respondents, prompting the claimant’s appeal to the EAT, where the central contention was the existence of a purported Agency Relationship beyond the specific assignment, providing her rights under the AWR.

Several legal principles proved pivotal in the EAT’s decision:

  1. Agency Workers Regulations: These regulations set forth the rights of agency workers to the same basic working and employment conditions as if they had been directly recruited by the hirer, particularly after completing a 12-week qualifying period with the hirer.

  2. Concept of ‘Assignment’: Both the AWR and the Temporary Agency Work Directive (AWD) that it implements focus primarily on the period of assignment when the agency worker is actively supplied to the hirer.

  3. Agency Relationship: The concept of an overarching Agency Relationship extending beyond individual assignments and encompassing the rights under the AWR was closely scrutinized. The EAT rejected this notion, highlighting that the entitlements conferred by regulation 5 relate only to periods when the worker is within an assignment.

  4. Suspension versus Termination: The EAT distinguished between the ‘suspension’ of conventional employees, who typically have a continuous entitlement to pay, and the so-called ‘suspension’ of an agency worker, which does not trigger an ongoing entitlement to wages without the offer and acceptance of an assignment.

  5. Objective Test for Termination: The assessment of whether an agency worker’s assignment has been terminated is subjected to an objective reading of the parties’ actions and communications.

These principles were viewed through the lens of case law, such as ‘Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust’ [2022] IRLR 115, which dealt with the entitlements of workers without guaranteed hours, and ‘Angard Staffing Solutions Ltd v Kocur’ [2020] ICR 1541, which helped define the meaning of ‘assignment’ and ‘supply’ in the context of the AWR.

Outcomes

The EAT upheld the decision of the ET, concluding there was no overarching Agency Relationship beyond the scope of individual assignments that could bestow upon the claimant a right to suspension pay post-assignment termination. It further held that the entitlements under regulation 5 of the AWR were inapplicable outside of assignments, affirming the termination of the claimant’s assignment with the hirer and the absence of further AWR entitlements.

Conclusion

In ‘Emelia Donkor-Baah v University Hospitals Birmingham NHS Trust & Ors’, the EAT provided a definitive interpretation of the legal landscape concerning agency workers’ rights under the AWR. The decision clarifies that the entitlements under regulations 5 and 6 of the AWR do not extend beyond the period of individual assignments. Consequently, for agency workers, the notion of suspension, as might be understood in the context of conventional employment, does not apply in the absence of an ongoing assignment. This case serves as a guiding precedent for the treatment of agency workers and delineates the significance of assignment-specific entitlements within the statutory framework.

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