Skip to content

Brought to you by

Dentons logo in black and white

UK People Reward and Mobility Hub

The latest updates in employment, benefits, pensions and immigration

open menu close menu

UK People Reward and Mobility Hub

  • Home
  • Events and training
  • Who We Are
    • Meet the team
  • How we can help

Overarching “agency relationships” did not exist between a worker’s assignments

By Christopher Seymour
March 20, 2024
  • Compensation
  • Dispute resolution
  • Employee benefits
  • Employment status
  • Tribunal claims
Share on Facebook Share on Twitter Share via email Share on LinkedIn

This was the decision of the Employment Appeal Tribunal (EAT) in the recent case of Donkor-Baah v University Hospitals Birmingham NHS Trust and others. The EAT determined that, based on the specific circumstances presented, Ms Donkor-Baah, who was employed as an agency worker by the Respondents, did not have the right to receive suspension pay between the end of one assignment and the start of another.

Factual background

From 2017, Ms Donkor-Baah was employed as a staff nurse agency worker across hospital trusts whereby each shift was considered a separate assignment. On 10 February 2019, following an incident during one of her nightshifts, Ms Donkor-Baah was instructed to leave early while the incident was under investigation. For approximately the next seven months, whilst the investigation took place, she did not receive any shift assignments and, consequently, was not compensated during this time. Once the investigation concluded, in November 2019, she was permitted to resume booking shifts on the same shift-by-shift basis that she was using previously.

Ms Donkor-Baah argued that this seven-month “break” amounted to a suspension and so she was entitled to full pay during the suspension, relying on her Regulation 5 right under the Agency Workers Regulations 2010 (AWR) to the same working conditions as directly recruited workers at the Trust. Regulation 5 states that after 12 weeks’ continuous service, agency workers are entitled to the same pay terms as direct employees. Ms Donkor-Baah contended that she was in an overarching “agency relationship” with the Trust which persisted beyond each individual assignment, and that the suspension of this relationship by the Trust warranted her payment.

An employment tribunal struck out this claim, finding that it had no reasonable prospects of success. Ms Donkor-Baah appealed to the EAT.

The EAT decision

The EAT upheld the employment tribunal’s decision by ruling that Ms Donkor-Baah did not qualify for pay during the investigation period as her assignment was terminated on 10 February 2019. When assessing the presence of an overarching agency relationship, the EAT referred to Regulation 5 and determined that the “12-week rights” only apply to times when an agency worker is actively engaged on an assignment for a hirer. These rights do not cover periods when the worker is not on assignment.

The EAT held that this interpretation is supported by several factors:

  • the language of Regulation 5(4), which necessitates a comparative analysis when both the agency worker and the employee are “working for and under the supervision and direction of the hirer”;
  • the specific entitlements addressed by Regulation 5 pertain to fundamental working and employment conditions;
  • the structure of the AWR, which characterises an agency worker in Regulation 3(1) with reference to their provision to a hirer in a manner that aligns with the “assignment” definition in Regulation 2; and
  • the phrasing of the EU Temporary Agency Work Directive, which the AWR enacts, that explicitly mentions equivalent basic working conditions “for the duration of their assignment”.

As such, the EAT observed that Ms Donkor-Baah’s assignment concluded on the day she was sent home and she did not undertake further assignments until November 2019. Therefore, she was not considered a worker during this interval and was not eligible for pay.

The EAT also commented on the complexity of applying the concept of an overarching relationship in reality, especially when an agency worker is assigned to various hirers, which is often the case. Agency work can be sporadic and temporary in nature, which often leads to disputes such as this where there are gaps between assignments or those assignments are paused, cancelled or amended.

The full judgment on this case can be reviewed here.

Share on Facebook Share on Twitter Share via email Share on LinkedIn
Subscribe and stay updated
Receive our latest blog posts by email.
Stay in Touch
Compensation, Dispute Resolution, employee benefits, employment status, Tribunal claims
Christopher Seymour

About Christopher Seymour

Christopher is an associate in Dentons' People, Reward and Mobility team, focusing on UK employment law. He has experience in both contentious and non-contentious areas of employment law, ranging from advisory and transactional matters through to tribunal litigation.

All posts

You might also like...

  • Employee benefits
  • Employee welfare
  • Family friendly rights

Parental Bereavement (Leave and Pay) Act 2018 receives royal stamp of approval

The Parental Bereavement (Leave and Pay) Act 2018 was given royal assent on 13 September 2018, having started out in July 2017 as a Private Member's Bill subsequently supported by the government.

By admin
  • Employee benefits
  • Employment policies
  • Pay, benefits and bonuses
  • Performance management
  • Recruitment

Bridging the green skills gap: the threat to sustainability goals and how employers can tackle being greener

By Esther Langdon and Elouisa Crichton
  • Atypical workers
  • Compensation
  • Contractors
  • Discrimination
  • Employee welfare
  • Employment policies
  • General
  • Low Paid Workers
  • Pay, benefits and bonuses
  • Tribunal claims
  • TUPE/outsourcing

Contract workers and indirect discrimination – the importance of the right comparators!

By Christopher Seymour

About Dentons

Redefining possibilities. Together, everywhere. For more information visit dentons.com

Grow, Protect, Operate, Finance. Dentons, the law firm of the future is here. Copyright 2023 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. Please see dentons.com for Legal notices.

Categories

Dentons logo in black and white

© 2025 Dentons

  • Legal notices
  • Privacy policy
  • Terms of use
  • Cookies on this site