Mrs Donkor-Baah v University Hospitals Birmingham NHS Foundation Trust and Others
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Williams |
| Court | Employment Appeal Tribunal |
| Published date | 01 March 2024 |
Judgment approved by the court for handing down Donkor-Baah v University Hospitals Birmingham
© EAT 2024 Page 1 [2024] EAT 23
Neutral Citation Number: [2024] EAT 23
Case No: EA-2021-001299-BA
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 29 February 2024
Before :
MRS JUSTICE HEATHER WILLIAMS DBE
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Between :
EMELIA DONKOR-BAAH
Appellant
- and –
1) UNIVERSITY HOSPITALS BIRMINGHAM NHS TRUST
2) SARAH SALTER
3) STUART CASSON
4) 4 RECRUITMENT SERVICES LIMITED
Respondents
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Naomi Ling (instructed by Advocate) for the Appellant
Madeline Stanley (instructed by Bevan Brittan LLP) for the 1st – 3rd Respondents
Tom Wilding (instructed on a direct access basis) for the 4th Respondent
Hearing date: 31 January 2024
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JUDGMENT
Judgment approved by the court for handing down Donkor-Baah v University Hospitals Birmingham
© EAT 2024 Page 2 [2024] EAT 23
SUMMARY
Agency workers
The claimant appealed from the judgment of the Employment Tribunal (“ET”) striking out her claims
against the first and fourth respondents (“R1” and “R4”) that were based on regulation 5 of the
Agency Workers Regulations 2010/93 (“AWR”).
R4 was a temporary work agency who supplied the claimant to R1, the hirer, to work nursing shifts
in a hospital. The claimant booked her shifts with R1 on a shift by shift basis. Following an alleged
incident during the night shift on 10 February 2019, at 2.30am the claimant was told to end her shift
early and go home. Her case was that she was suspended at this point, that her suspension continued
until 6 November 2019 when she was told that she could re-commence booking shifts with R1 and
that she was entitled to be paid for this period of suspension pursuant to regulation 5 AWR, as R1’s
own employees or workers would have been paid during a period of suspension. R1 and R4 disputed
the claim, contending that her assignment with R1 had terminated when she was sent home at 2.30am
on 10 February 2019 and that, accordingly, she could not have been suspended by R1 thereafter, who
had no ongoing relationship with her.
The ET found that the claimant’s assignment was terminated when she was sent home at 2.30am on
10 February 2019 and that accordingly there was no suspension of her relationship with R1 and her
claim under the AWR for suspension pay had no reasonable prospects of success.
On appeal, and now represented by counsel, the claimant did not positively challenge the ET’s
conclusion as to the termination of her assignment. However, she argued that, read together,
regulations 5, 7 and 8 AWR gave rise to an overarching “Agency Relationship” between an agency
worker and a hirer, that was capable of subsisting beyond individual assignments and that it was this
relationship which had been suspended by R1.
The claimant was permitted to argue this new point of law, but it was rejected by the Employment
Appeal Tribunal on its merits. The entitlements conferred on agency workers by regulation 5 AWR
relate to the period of an assignment, when the agency worker is working for the hirer. This is apparent
Judgment approved by the court for handing down Donkor-Baah v University Hospitals Birmingham
© EAT 2024 Page 3 [2024] EAT 23
from the nature of the entitlements, the language of regulation 5(4), the scheme of the AWR which
defines an agency worker in regulation 3(1) by reference to their supply to a hirer and in terms
7 and 8 do not support the existence of the alleged overarching “Agency Relationship”.
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