Rights of an Agency Worker on Suspension

Using temporary agency workers supplied through an employment business can provide companies with a flexible staffing resource. Agency workers can be engaged at short notice without the employment liabilities associated with direct hires. 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 role with the same hirer.

The Case

In Donkor-Baah v University Hospitals Birmingham NHS Trust and ors, DB was engaged as a staff nurse agency worker and had been continuously assigned to the Trust for two years. Following an incident during a night shift on 10 February, she was asked to end her shift early and go home. DB argued that this amounted to a suspension and that, under Regulation 5 AWR, she should receive full pay during suspension just as the Trust’s permanent employees would.

The Outcome

Both the First-tier Tribunal and the Employment Appeal Tribunal (EAT) rejected DB’s claim. They held that Regulation 5 applies only to periods during which an agency worker is actually engaged by the hirer. Since DB’s assignment ended when she was sent home on 10 February, there was no continuing engagement to trigger entitlement to pay. The EAT confirmed that Regulation 5 was designed to protect workers during engagements and does not create a legally significant relationship outside those periods.

Terminating an Agency Worker

This decision is valuable for companies wishing to end an agency worker’s assignment quickly, particularly where misconduct is suspected. Once the engagement ends, there is no ongoing relationship that could give rise to liabilities for continued pay or unfair dismissal. Nevertheless, employers should proceed with caution:

• Discrimination Claims: Agency workers may bring claims under section 41 of the Equality Act as “contract workers” if termination is discriminatory.
• Formal Process: Consider conducting an investigation and hearing before termination to mitigate discrimination risk, especially if a protected characteristic is involved.
• Liabilities for Employment Businesses: Under section 55 of the Equality Act, employment businesses can also face claims if they terminate an assignment for discriminatory reasons, even at a hirer’s request. Ensure commercial terms provide adequate protection.

For further guidance on an agency worker’s right to receive full pay whilst on suspension, visit our detailed analysis.