Donkor-Baah v University Hospitals Birmingham NHS Foundation Trust and Others
| Jurisdiction | UK Non-devolved |
| Court | Employment Appeal Tribunal |
| Neutral Citation | [2024] EAT 23 |
| Year | 2024 |
2024 Jan 31; Feb 29
Employment - Contract of employment - Agency worker - Agency nurse sent home during shift and only permitted to re-commence booking shifts months later - Nurse claiming entitlement to be paid during interim period - Whether overarching agency relationship capable of subsisting beyond individual assignments - Whether claimant suspended when sent home during shift and entitled to suspension pay -
The claimant was supplied by the fourth respondent temporary work agency to work nursing shifts in a hospital for the first respondent on a shift by shift basis. Following an alleged incident, she was sent home during a shift. Nine months later she was told that she could re-commence booking shifts. The claimant brought a claim alleging that she was entitled to be paid for the nine-month period, pursuant to regulation 5 of the Agency Workers Regulations 2010F1 (implementing Parliament and Council Directive 2008/104/EC), on the basis that the first respondent’s own employees or workers would have been paid during a period of suspension. The first and fourth respondents disputed the claim, contending that her assignment with the first respondent had terminated when she was sent home and that, accordingly, she had not been suspended by the first respondent, who had no ongoing relationship with her. A preliminary hearing was listed to determine the date on which the claimant’s assignment ended and to consider applications by the first and fourth respondents that the claim should be struck out or subjected to a deposit order. The tribunal found that the claimant’s assignment was terminated when she was sent home and that, accordingly, there was no suspension of her relationship with the first respondent, and therefore it struck out her claim for suspension pay as having no reasonable prospects of success. On appeal, the claimant did not challenge the tribunal’s conclusion as to the termination of her assignment but argued, inter alia, that regulations 5–8 of the Regulations, read together, gave rise to an overarching agency relationship between an agency worker and a hirer, which was capable of subsisting beyond individual assignments, and that that relationship had been suspended by the first respondent and brought about an entitlement to suspension pay.
On the appeal—
Held, dismissing the appeal, that in light of the wording of regulations 5–8 and the overall scheme of the Agency Workers Regulations 2010, the entitlements conferred on agency workers by regulation 5 concerned the kinds of rights applicable during the period of an assignment, when the agency worker was working for the hirer, rather than a broader right not to be treated less favourably than the hirer’s employees or workers; that the terms of article 5 of Directive 2008/104/EC informed the interpretation of the provisions of the Regulations, and construction of article 5 supported that conclusion; that, further, absent a position where the regulation 5 rights related to the period of an agency worker’s assignment and were in fact attributable to a broader, umbrella agency relationship, it was hard to see how and when the entitlements would come to an end, and, on their true construction, regulations 7 and 8 did not give an answer to that question; that the contrary conclusion was not necessary in order to protect agency workers and reflect the purpose and policy behind the Directive and Regulations; that, accordingly, there was in the instant case no overarching agency relationship which continued after the termination of the claimant’s assignment with the first respondent; and that it followed that the claimant was not suspended by the first respondent, as there was no ongoing relationship to suspend, and she had no ongoing relationship with the first respondent for the purposes of claiming an entitlement to suspension pay (post, paras 75, 77–80, 84, 85, 86, 88, 90–93, 100).
The following cases are referred to in the judgment:
Agbeze v Barnet, Enfield and Haringey Mental Health NHS Trust [
Angard Staffing Solutions Ltd v Kocur [
Angard Staffing Solutions Ltd v Kocur
Brent London Borough Council v Fuller
DPP Law Ltd v Greenberg
Gregg v North West Anglia NHS Foundation Trust
Jones v Governing Body of Burdett Coutts School [
Meek v City of Birmingham District Council [
Ryanair DAC v Lutz [2023] EAT 146; [
Stuart Delivery Ltd v Augustine
Sullivan v Bury Street Capital Ltd
Uber BV v Aslam
Willoughby v CF Capital plc
Yeboah v Crofton
The following additional cases were referred to in the skeleton arguments or cited in argument:
Carmichael v National Power plc [
East Kent Hospitals University NHS Foundation Trust v Levy UKEAT/232/17 (unreported) 5 June 2018,
James v Greenwich London Borough Council [
Preston v E.ON Energy Solutions Ltd [
Rice Shack Ltd v Obi UKEAT/240/17 (unreported) 2 March 2018,
Volpi v Volpi
APPEAL from an employment tribunal sitting at Birmingham
The claimant, Emilia Donkor-Baah, brought claims against the respondents, University Hospitals Birmingham NHS Trust, Sarah Salter, Stuart Casson and 4 Recruitments Services Ltd. As against the first and fourth respondents she contended that she had been suspended from her work for the first respondent at a hospital, for which she had been engaged by the fourth respondent, and was entitled to be paid for the period of suspension pursuant to regulation 5 of the Agency Workers Regulations 2010. By a judgment sent to the parties on 22 October 2021, an employment tribunal sitting at Birmingham (Employment Judge Butler) struck out the claims against the first and fourth respondents for having no reasonable prospects of success.
By a notice of appeal dated 3 December 2021 and with permission granted by Judge James Tayler following a hearing on 1 February 2023 under rule 3(10) of the Employment Appeal Tribunal Rules 1993, the claimant appealed on various grounds, predicated on the core submission that, read together, regulations 5, 7 and 8 of the Regulations gave rise to an overarching agency relationship between an agency worker and the hirer in respect of the rights set out in regulations 5 and 6, and that that relationship subsisted, or was capable of subsisting, between individual assignments and could give rise to a suspension, and hence to an entitlement to suspension pay.
The facts are stated in the judgment, post, paras 4, 10–18.
Naomi Ling (instructed directly through
Madeline Stanley (instructed by
Tom Wilding (instructed directly) for the fourth respondent.
The appeal tribunal took time for consideration.
29 February 2024. HEATHER WILLIAMS J handed down the following judgment.
Introduction1 I will refer to the parties as they were known below. The claimant appeals from the judgment of Employment Judge Mark Butler (“the EJ”) sitting in the Birmingham Employment Tribunal (“ET”) promulgated on 22 October 2021, following an open preliminary hearing on 28 September 2021. The ET struck out the claims based on regulation 5 of the Agency Workers Regulations 2010 (“AWR”) made against the first respondent (“R1”) and the fourth respondent (“R4”), on the basis that they had no reasonable prospects of success.
2 R4 is a temporary work agency (“TWA”) who supplied the claimant nurse to undertake shift work at R1’s hospital. Whilst she brings other claims against the respondents, it is accepted that there is no claim under the AWR in respect of the second and third respondents. Accordingly, it is agreed that in so far as they were joined as parties, the appeal against those respondents should be dismissed.
3 Following a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993 (SI 1993/2854) (as amended) on 1 February 2023, permission to proceed to a full hearing was granted by Judge James Tayler, on the basis of amended grounds of appeal. The claimant had appeared in person before the ET, but was represented by Ms Ling of counsel at the rule 3(10) hearing and at the substantive appeal hearing.
4 The claimant was sent home during her shift on the night of 9–10 February 2019. She said that she was suspended at this point and that her suspension continued until 6 November 2019, when she was told she could re-commence booking shifts with R1. Relying on regulation 5 AWR, she claimed that she was entitled to be paid during this period of suspension, as R1’s own employees or workers would have been paid during a period of suspension. R1 and R4, on the other hand, contended that the claimant’s working with R1 was terminated when her 9–10 February 2019 shift was brought to an end and that her assignment with R1 concluded at that point. A preliminary hearing was listed to determine: (i) the date on which the claimant’s assignment with R1 ended; and (ii) depending on the outcome of that issue, to consider the applications made by R1 and R4 that the claimant’s claim under regulation 5 AWR be struck out or subjected to a deposit order. The EJ held that the claimant’s assignment with R1 terminated...
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