7th March 2024

EAT finds no overarching ‘agency relationship’ between assignments of agency worker

Bethany Smith

The Employment Appeal Tribunal has handed down its decision in Donkor-Baah v University Hospitals Birmingham NHS Trust [2024] EAT 23 holding that there was no ‘agency relationship’ existing in between the individual assignments of an NHS Trust agency worker. The claimant worker could not be viewed as having been ‘suspended’ and was not entitled to suspension pay under regulation 5 of the Agency Worker Regulations 2010/93 (AWR).

Mrs Justice Heather Williams sitting in the EAT rejected the claimant’s appeal against the Employment Tribunal’s strike out of her claim for suspension pay on the basis that it had no reasonable prospect of success. Her claim was brought against (inter alia) the NHS Trust for which she undertook the work as well as the temporary work agency (TWA) which supplied the claimant to the Trust. The latter was represented in the appeal by 36 Public’s Tom Wilding.

The claimant’s appeal was predicated on the notion that an overarching agency relationship existed in between assignments and that the relationship had been suspended following an incident on shift which led to the claimant being sent home and prevented from booking further shifts with the Trust. The respondents’ position, and the ET’s determination, was that the claimant’s assignment terminated when she was sent home and that there was no suspension.

The claimant’s central submission was that regulations 5, 7 and 8 AWR together give rise to an ‘umbrella’ type agency relationship between an agency worker and a hirer in respect of the rights set out in regulations 5 and 6 and that this relationship is capable of subsisting in between individual assignments, creating the possibility of a suspension notwithstanding the fact a particular assignment has ended.

The respondent Trust objected and submitted that, given the nature of the rights and the language of the provision, regulation 5 does not give rise to entitlements outside of the periods that constitute assignments. Mr Wilding for the respondent TWA adopted those submissions and noted that the central question was whether the EJ had been entitled to find that the individual assignment had ended and what the consequences of that finding were. The focus was not on the contractual relationship between the claimant and the TWA since the claimant had been entitled to take up assignments from other hirers following the incident.

The EAT held that the EJ was plainly correct in finding that the claimant’s assignment had been terminated and rejected the claimant’s submission that the AWR gave rise to an overarching agency relationship between the claimant and the respondent Trust extending beyond that termination. The EAT was persuaded by the respondents’ submissions on the nature of the rights in regulation 5 and on the wording of the AWR, being guided the definitions of “agency worker” in regulation 3 and “assignment” in regulation 2.

The EAT also took guidance from Angard Staffing Solutions Ltd v Kocur [2020] ICR 1541 (Angard No. 2) and Ryanair DAC v Lutz [2023] EAT 146 (which endorsed the approach taken in Angard No. 2). The central issue in those cases was the meaning of the term “temporarily” in the context of regulation 3(1)(a). The EAT in Donkor-Baah took note of the fact that the analysis in Angard No. 2 focused on the nature of the particular assignment, not on an overarching relationship said to continue in between assignments.

The EAT was further guided by Article 5 of Directive 2008/104/EC on Temporary Agency Work (AWD) which informed the interpretation of the AWR. The EAT found that the language of Article 5 focuses on the duration of an assignment and that the absence of equivalent language in regulation 5 does not reflect an intention to go further than the AWD given the nature of the regulation 5 rights (a comparison was drawn with regulation 13 in which such limiting language is necessarily set out due to the broader nature of the right to information).

Finally, the EAT found that it would be difficult to decipher how and when rights come to an end if there existed an overarching agency relationship, with particular problems arising in the application of the 12-week qualifying period under regulation 8.

The EAT’s decision shines light on the scope of the rights provided to agency workers under the AWR. It appears to accord with Green LJ’s determination in Angard Staffing Solutions Ltd v Kocur [2022] ICR 854 (Angard No. 3) insofar as it rejects the proposition that the purpose of the AWR/AWD is to accord a high degree of primacy to the position of temporary workers relative to permanent workers. As Green LJ put it, “this is not a Directive which in relative terms seeks to give priority to one interest over another . . . it is a measure which endeavours to strike a pragmatic balance between a variety of different competing objectives without creating any hierarchy of interests.” Indeed the EAT in Donkor-Baah noted that the approach taken is consistent with the underlying purpose and policy objectives of the regulations.

A copy of the judgment is available here.

Further information

For more information from the employment-civil team, contact clerks@36civil.co.uk

Bethany Smith

Involving Bethany Smith