Developer sector key case update: Agency worker not entitled to pay “between assignments”

The effective engagement of agency workers is integral to developers meeting the resourcing requirements of projects throughout their life cycle. The level of use of agency workers fluctuates over time, with a constant cycle of assignments starting and ending. An important issue that often arises is whether agency workers are entitled to be paid for periods between one assignment ending and another commencing.

The rights of agency workers are governed by the Agency Worker Regulations 2010 (the Regulations). After the agency worker has been working for the same company for 12 continuous weeks, the Regulations entitle the worker to the same basic working and employment conditions as they would enjoy if they were an employee. This includes a right to the same pay that employees get.

The recent Employment Appeal Tribunal (EAT) decision of Donkor-Baah v University Hospitals Birmingham NHS Trust explored the extent of the rights conferred by the Regulations in so far as they relate to a “pay between assignments”. Although it relates to an agency worker within the healthcare sector, the principles apply equally to those operating in the Developer sector.

Case background

A work agency contracted with the Claimant, a nurse, to work shifts at an NHS Trust. The Claimant was booked to work shift-by-shift. Each shift was treated as a separate assignment. The Claimant worked part of a shift in February 2019, but, due to concerns from a senior nurse, the Claimant’s shift was ended early, and she was sent home subject to an internal investigation.

The Trust paid for the remainder of her shift and cancelled the other shifts she was booked to work. The Claimant was told she could book shifts again in November 2019, subject to the conclusion of the investigation.

The Claimant argued that she was entitled to be paid during what she said was a period of suspension. The Trust's own employees or workers would have been paid during a period of suspension pending investigation, and so she claimed that she was entitled to the same treatment.

The Employment Tribunal's decision

The Employment Tribunal held that the Claimant’s assignment with the Trust terminated at the end of her shift. She therefore could not claim suspension pay, as there was no overarching relationship between her and the work agency. She appealed and the EAT rejected the appeal, again finding that the Claimant was not entitled to be paid between February 2019 and November 2019.

The right to equal treatment under the Regulations applies to the period when both the comparative employee and the agency worker are "working for and under the supervision and direction of the hirer". In the case of an agency worker, this means when they are on an assignment.

The EAT observed that, if this was not the case, an agency worker could theoretically have several overarching agency relationships with different hirers between various assignments.

What can developers take away from this? 

This case will be welcomed by end user clients in the developer sector who rely on the flexibility of being able to bring agency workers’ assignments to an end without incurring ongoing costs throughout the period when the resources cannot be utilised.

It does however highlight the importance of defining an 'assignment', from the outset of any agency relationship. Contracts should be clear in expressing the basis on which assignments arise, and ideally set out how and when each assignment will come to an end.