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Katie Harris

Employment


Using temporary agency workers supplied through an employment business can provide many companies with a flexible staffing resource. Agency workers can, in essence, be engaged at short notice for short periods with none of the employment liabilities or burden associated with directly hiring staff. However, under Regulation 5 of the Agency Workers Regulations 2010 (‘AWR’), agency workers are entitled to the same basic work and employment conditions as permanent workers after 12 weeks in the same job with the same hirer. 

The scope of this protection has often been the subject of legal challenge. In a case that will be of interest to many employment businesses and companies that engage agency workers, the Employment Appeal Tribunal (EAT) has recently denied an agency worker’s claim that she should receive full pay for a period of ‘suspension’ on the same terms and in the same way as a permanent employee. 

 

The case

In Donkor-Baah v University Hospitals Birmingham NHS Trust and ors, DB was engaged as a staff nurse agency worker who had been continuously engaged by the Trust to work a series of shifts over a period of two years. Following an incident during a night shift on 10th February, DB was asked to end her shift early and go home.

DB argued that this amounted to a suspension and as such she should be entitled to full pay during the period of suspension under Regulation 5 AWR, as the Trusts’ permanent employees would have been entitled to this. 

 

The outcome

DB’s argument was rejected by both the first-tier tribunal and the EAT, who held that Regulation 5 only applies to periods during which the agency worker is actually engaged by the hirer. As DB’s engagement with the Trust ended on 10th February when she was asked to go home, Regulation 5 did not apply to any period after this. DB’s argument that there was an ‘overarching relationship’ between herself and the trust which continued to exist in between assignments (and therefore that Regulation 5 should continue to apply during this period) was likewise rejected. The EAT noted that the purpose of Regulation 5 is to protect agency workers during the period of an engagement and did not create a legally significant relationship between the hirer and worker outside of those periods.

 

Terminating an agency worker

This case is useful for companies who may wish to terminate an agency worker’s engagement quickly, particularly in circumstances where misconduct is suspected. This case demonstrates that once the engagement has come to an end, there is no continuing relationship between the hiring company and the worker that could give rise to any further liabilities, and in this case the right to be ‘suspended on full pay’. Temporary agency workers are generally unable to bring unfair dismissal claims against hiring companies, and so their recourse if their engagement is terminated is very limited, and therefore the risk to the hirer is likewise considered to be low. 

However, a word of caution, agency workers engaged via an employment business may still be able to bring claims for discrimination against hiring companies under section 41 of the Equality Act as a ‘contract worker’. While it might be tempting to simply end the relationship quickly and without any formal process, particularly in light of the decision in this case, hiring companies should still proceed with caution and consider whether a formal process (such as an investigation and hearing) should be followed prior to termination, particularly if the agency worker has a protected characteristic. A failure to do so could potentially result in a claim that the decision to end the agency relationship was discriminatory in some way, which may be more difficult to defend.

Similarly, claims may also potentially be brought against employment businesses themselves under section 55 of the Equality Act if the engagement is terminated for discriminatory reasons, even if that termination is at the request of the hirer. Therefore, employment businesses should make sure they have adequate protection from such claims in the commercial terms they have in place with hirers.

 

How our employment solicitors can help

Katie Harris at Boyes Turner has extensive experience advising employment businesses and companies on labour supply chains and issues that arise in relation to both agency workers and contractors, including IR35. If you would like further information or advice on your particular situation, please contact our employment team.


Get in touch

If you have any questions relating to this article or have any employment disputes you would like to discuss, please contact us.

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