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Agency workers

Adrian Fryer

Adrian Fryer

Agency workers are different from employees and workers. They have a contract with an agency. The agency provides their services to a hirer. Typically, there is no direct relationship between the agency worker and the hirer.

The Agency Workers Regulations 2010 (AWR) give agency workers certain rights when they are working on assignments for hirers. In particular, Regulation 5 AWR states that, after 12 weeks’ continuous service, agency workers are entitled to the same pay terms as direct employees.

In the recent case of Donkor Baah v University Hospitals Birmingham NHS Trust and others, the Employment Appeal Tribunal looked at whether an overarching agency agreement existed 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.

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

The Claimant argued that her assignment with the hirer continued even when she couldn’t book shifts. She claimed suspension pay on the basis that direct employees would get this and she was entitled to the same pay terms because of Regulation 5 AWR.

The tribunal held that the Claimant’s assignment with the hirer 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 hirer sent her home and the hirer 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.

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