Emelia Donkor-Baah v University Hospitals Birmingham NHS Trust & Ors

An agency worker’s equal-treatment rights under Agency Workers Regulations 2010 regulation 5 apply during an assignment, when the worker is supplied to work for the hirer. The Regulations do not create an overarching relationship with the hirer which continues after an assignment has ended and which can itself be suspended.

Regulations 7 and 8 preserve a completed qualifying period across specified breaks for the purpose of later assignments. They do not continue regulation 5 rights during a period when the worker is not assigned to the hirer. Accordingly, termination of the relevant assignment meant that no entitlement to suspension pay could arise under regulation 5.

The claimant, a nurse supplied by a temporary work agency, booked hospital shifts with the hirer individually. During a night shift, she was sent home early. Her next booked shift was cancelled and she received no further shifts from that hirer.

She alleged that she had been suspended until the investigation concluded and claimed pay equivalent to that received by directly employed staff during suspension, relying on regulation 5 of the Agency Workers Regulations 2010. The Employment Tribunal found that the assignment ended when she was sent home and struck out the claims against the hirer and agency as having no reasonable prospects of success.

On appeal, the claimant advanced a legal argument that regulations 5, 7 and 8 created an overarching relationship with the hirer which survived individual assignments and could be suspended. The central issue was whether the Regulations supported that alleged relationship and a resulting claim for suspension pay.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant’s individual assignment ended at 2.30am on 10 February 2019. She did not positively challenge that finding, which was plainly correct on the findings that she worked shift by shift, was sent home, had a future shift cancelled, and was not told that she was suspended.

2. Regulation 5 of the Agency Workers Regulations 2010 concerns working and employment conditions applicable while an agency worker is undertaking an assignment. The listed conditions, including pay, working time, night work, rest periods and annual leave, are directed to that period. Regulation 5(4) also requires the agency worker and comparator to be working under the hirer’s supervision and direction when the alleged breach occurs.

3. The definitions of “agency worker” and “assignment” reinforce that assignment-focused scheme. Article 5 of Directive 2008/104/EC similarly provides equal treatment for the duration of the assignment. The Directive requires a balance between worker protection and hirer flexibility; it does not justify expanding a right beyond its natural language.

4. Regulations 7 and 8 concern completion and preservation of the 12-week qualifying period across assignments. They do not create continuing regulation 5 and 6 entitlements when the worker is no longer assigned. Treating them as doing so would produce the incoherent result that rights persisted even after a hirer had plainly ended the working relationship.

5. There was therefore no overarching “Agency Relationship” with the hirer capable of suspension after termination of the assignment. The claimant could not establish a regulation 5 entitlement to suspension pay. The remaining grounds, including challenges to the Tribunal’s treatment of communications, contractual material, perversity and reasons, disclosed no error of law. The appeals against the second and third respondents were also dismissed by agreement.

• Employment Appeal Tribunal: Appeal dismissed in [2024] EAT 23.
• Employment Tribunal: At an open preliminary hearing, the Tribunal held that the assignment ended at 2.30am on 10 February 2019 and struck out the regulation 5 claims against the hirer and temporary work agency as having no reasonable prospects of success.