Agency workers
Agency workers are widely used in the UK, particularly within the healthcare sector. Since 2019, shortages of doctors and nurses mean that companies providing freelance staff to the NHS are seeing their turnover increase dramatically, with the NHS spending £4.6bn on agency staff in 2022/23.
The Agency Worker Regulations 2010 set out the rights that agency workers have. Regulations 5 and 7 tell us that after an agency worker has been working in the same role with a hiring company for 12 continuous weeks, they become entitled to the same basic working and employment conditions as they would be if they were engaged by the hiring company directly. The most obvious '12 week right' is the right to the same pay.
Agency workers' contracts often refer to 'assignments' and treat each posting with the hiring organisation as an isolated assignment. Assignments will often be short in duration, which allows the agency worker to undertake work for various hirers.
The contracts will also often contain a clause stating that the agency will endeavour to, but is not obliged to offer assignments to the agency worker. Similarly, the agency worker is normally not obliged to accept any assignment offered to them.
Well drafted contracts will also stipulate that the nature of the work is temporary, that there may be periods when no suitable work is available and that the agency and hiring company does not incur any liability to the agency worker if they fail to offer them any assignments.
This type of working arrangement regularly leads to disputes where assignments are cancelled, or the agency stops offering assignments to the worker, for example whilst a conduct issue is investigated.
These questions were examined by the EAT in Donkor-Baah.
Donkor-Baah v University Hospitals Birmingham NHS Trust and ors
Ms Donkor-Baah was supplied by an agency to work shifts at the Trust as a staff nurse. Her work was booked on a shift-by-shift basis, whereby each shift was treated as an individual assignment. An alleged incident occurred during Ms Donkor-Baah's shift on 10 February 2019, following which she was told to go home early whilst the matter was investigated. Ms Donkor-Baah was not offered any assignments during the investigation, which did not conclude until November 2019. She was not paid in that period. At the end of the investigation, Ms Donkor-Baah was allowed to book shifts again.
Ms Donkor-Baah, argued that by virtue of her '12 week rights', she was entitled to full pay throughout the period of February - November 2019 ("the Investigation Period"), where she said that she was suspended. It was not disputed that workers directly employed by the Trust would have been entitled to full pay during a period of suspension. In making this argument, Ms Donkor-Baah argued that there was an overarching 'agency relationship' between herself and the Trust that remained after the end of each assignment, and that it was this relationship that had been suspended by the Trust, thus entitling her to pay.
The EAT found that Ms Donkor-Baah was not entitled to pay during the Investigation Period. In determining whether there is an overarching agency relationship, the EAT looked at Regulation 5, and concluded that the 12 week rights relate only to the period where an agency worker is actively working on an assignment for the hiring company. The right does not extend to periods when the agency worker is not working an assignment. The EAT noted that Ms Donkor-Baah's assignment had ended on 10 February 2019 after she was sent home, and she did not work any further assignments until November 2019. As such, during this period, she was not a worker and was not entitled to pay.
Within their commentary, the EAT noted that the concept of an overarching relationship would be difficult to operate in practice, particularly in a case where an agency worker is supplied to different hiring companies, as is regularly the case.
Comment
This is a helpful case for agencies and hirers who face similar wages claims for periods where assignments are stopped/suspended. However, it does not mean that all claims of this nature are destined to fail. There may be cases where the agency worker can establish that assignments are stopped for discriminatory reasons, or because they have blown the whistle, in which case they may still be able to seek a remedy for losses.
The case is also a good reminder for agencies to check their standard terms to ensure that there are appropriate protections in place to minimise the risk of a Tribunal finding that there is an overarching contract between assignments. If you need any assistance with regard to the issues raised in this update please do not hesitate to get in touch.
Authored by Lauren Parkinson and Neal Mellor
