The Question
Does an agency worker get full pay under rights given to an agency worker within Regulation 5 of the Agency Workers Regulations 2010 (‘AWR’), when assignments are stopped by the hiring organization pending investigation of matters to an incident that the agency worker was involved in?
The Answer
Where an agency worker has worked for the hiring organization on the same job that a permanent worker is employed to do for a period of 12 calendar weeks where a week is period of seven calendar days starting with the first day of an assignment, then section 5 of the AWR gives agency workers the same employment rights as permanent workers working for the hiring organization and The Employment Appeal Tribunal (EAT)in the case of Onkor-Baah v University Hospitals Birmingham NHS Trust and Ors 2024 have decided that Regulation 5 did not on the facts of that case, apply between shift assignments where the agency worker whilst working on a shift for the hirer organization (NHS) was told by (NHS) to go home pending investigation over an incident that happened on her shift, (NHS) did not provide any further shifts to the agency worker during the investigation period that dragged on.
The EAT was of the opinion that regulation 5 only applied to periods during which the agency worker was actually engaged by the hiring organization. The agency worker argument, that because of Regulation 5, an agency relationship could be capable of subsisting in between individual shift assignments with the hire organization thus creating the possibility of paid suspension over the period of investigation did not apply, as the assignment had ended. Regulation 5 required to focus on the nature of the particular assignment and thus there was no continued overarching relationship between the agency worker and the hirer organization in between assignments.
The Risk/Threat
Any breach of obligations under AWR could result in both the hiring organization and the agency worker’s employer being liable to the extent of their infringement and an employment tribunal has the power to make a declaration, order payment of compensation that can be unlimited extending to injury to feelings.
What You Need To Do
Agency workers' rights can be quite complicated and consequence for the hiring organization can be quite severe thus prudent for a hiring organization to take appropriate HR / Legal advice on the matter. If you require any further assistance, please do not hesitate to contact our HR/Legal advice line team at 01455 852 028.
