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Suspending Agency Healthcare Staff: The Contractual position

In an important case for the Healthcare sector, the EAT has given clear guidance on the issue of nurses working temporary shifts through an agency.

The case centred around whether agency staff being sent home in the middle of a shift amounted to a suspension, and if so, whether they are entitled to be paid as normal during the period of ‘suspension’.

The Background

Looking at the case of Donkor-Baah v University Hospitals Birmingham NHS Foundation Trust and Others: [2024] EAT 23 In this case the Claimant had appealed from the judgment of the ET who struck out her claims against the 1st and 4th Respondents (“R1” and “R4”), which were based on regulation 5 of the Agency Workers Regulations 2010/93 (“AWR”).

The Claimant  was a nurse who booked work on a shift-by-shift basis. R4 was a temporary work agency who supplied the Claimant to R1, the hirer, to work nursing shifts in a hospital. Following an alleged incident during a night shift on 10 February 2019, at 2.30am the Claimant was told to end her shift early and go home. The Claimant claimed that this amounted to a suspension, and that the suspension continued until 6 November 2019 when she was told that she could re-commence booking shifts with R1. Her case was also that she should have been paid for this period. R1 and R4 disputed this, contending that when the Claimant was sent home at 2.30am, her assignment with R1 was terminated, and that she therefore could not have been suspended thereafter. The ET agreed that her assignment had been terminated at 2.30am, and accordingly there was no suspension.

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The Appeal

On appeal, the Claimant argued that regulations 5, 7 and 8 AWR gave rise to an overarching “Agency Relationship” between an agency worker and a hirer, which was capable of subsisting beyond individual assignments and that it was this relationship which had been suspended by R1.

The Claimant was given leave to argue this new point, but it was rejected by the EAT on its merits. The EAT decided that the entitlements conferred on agency workers by regulation 5 of the AWR related to the period of an assignment when the agency worker was working for the hirer, which they said was apparent from:

  1. The nature of the entitlements
  2. The language of reg 5(4)
  3. The scheme of the AWR which defined an agency worker and
  4. The terms of Directive 2008/104/EC on Temporary Agency Work, which the AWR implemented

The Important Takeaways

This will come as a relief to NHS employers, given the heavy reliance on agency and bank workers to cover the staff shortages that so frequently appear in the news cycles. The case shines a light on the scope of the rights provided to agency workers under the AWR, ultimately clarifying that when NHS employers hire agency workers (and other businesses who rely on temporary staff), like the Birmingham Trust did with Ms Donkor-Baah, it does not give rise to an overarching “Agency Relationship” between the agency worker and the hirer which is capable of subsisting beyond individual assignments. Should a similar situation arise for NHS / healthcare employers going forwards, they can feel confident in terminating the assignment without any confusion about the right to do so, in the knowledge that the EAT has concluded this won’t amount to suspension.

If you have any questions about this case, or any other matters involving Employment law in the NHS that you would like support on, please do get in touch with our expert Healthcare Employment Solicitors.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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