In the case of Ms D-B v University Hospitals Birmingham NHS Trust and others the EAT determined that, based on the specific circumstances presented, Ms D-B, who was employed as an agency worker by the Respondents, did not have the right to receive suspension pay between the end of one assignment and the start of another.
From 2017, Ms D-B was employed as a staff nurse agency worker across hospital trusts whereby each shift was considered a separate assignment. Following an incident during one of her nightshifts, Ms D-B was instructed to leave early while the incident was under investigation. For approximately the next seven months, whilst the investigation took place, she did not receive any shift assignments and, consequently, was not compensated during this time. Once the investigation concluded she was permitted to resume booking shifts on the same shift-by-shift basis that she was using previously.
Ms D-B argued that this seven-month “break” amounted to a suspension and so she was entitled to full pay during the suspension, relying on her Regulation 5 right under the Agency Workers Regulations 2010 (AWR) to the same working conditions as directly recruited workers at the Trust. Regulation 5 states that after 12 weeks’ continuous service, agency workers are entitled to the same pay terms as direct employees. Ms D-B contended that she was in an overarching “agency relationship” with the Trust which persisted beyond each individual assignment, and that the suspension of this relationship by the Trust warranted her payment.
An employment tribunal struck out this claim, finding that it had no reasonable prospects of success. Ms D-B appealed to the EAT.
The EAT upheld the employment tribunal’s decision by ruling that Ms D-B did not qualify for pay during the investigation period as her assignment was terminated. When assessing the presence of an overarching agency relationship, the EAT referred to Regulation 5 and determined that the “12-week rights” only apply to times when an agency worker is actively engaged on an assignment for a hirer. These rights do not cover periods when the worker is not on assignment.
As such, the EAT observed that Ms D-B’s assignment concluded on the day she was sent home and therefore, she was not considered a worker during this interval and was not eligible for pay.
The EAT also commented on the complexity of applying the concept of an overarching relationship in reality, especially when an agency worker is assigned to various hirers, which is often the case.
Source: Lexology
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