Did an overarching agency agreement exist between an agency worker and a hirer, such that the agency worker was entitled to ‘suspension pay’ from the hirer during a nine-month period when she was not allowed to book shifts with them?

No, decided the Employment Appeal Tribunal (EAT) in Donkor Baah v University Hospitals Birmingham NHS Trust and others.

The Claimant worked nursing shifts for the Respondent through an agency. In February 2019, during a night shift, an incident occurred. The Respondent told her to leave. In November 2019, she was allowed to resume booking shifts with the Respondent.

Regulation 5 Agency Workers Regulations 2010 (AWR) states that, after 12 weeks’ continuous service, agency workers are entitled to the same pay terms as direct employees.

The Claimant argued that her assignment with the Respondent continued even when she couldn’t book shifts. She claimed suspension pay on the basis that direct employees would get this. 

The original tribunal held that the Claimant’s assignment with the Respondent ended when she was sent home in February 2019. Thus, she wasn’t entitled to suspension pay. The Claimant appealed. She agreed her assignment had ended in February 2019, but she argued that an overarching ‘agency relationship’ could continue to exist between assignments. This is what had been suspended when the Respondent sent her home and the Respondent owed her suspension pay as a result.

The EAT rejected this argument. The rights of agency workers in the AWR all relate to a period of assignment, when the agency worker is actively working for the hirer. There was no scope in the AWR for an overarching ‘agency relationship’, which could continue between assignments, to exist.