In Mr A Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust EA-2020-000413-VP(formerly UKEAT023220VP), the Employment Appeal Tribunal (EAT) has recently held that a bank worker was not entitled to receive pay whilst suspended from the bank pending investigation. This decision resolves a number of conflicting first instance Employment Tribunal cases, including Ibrahim v Maidstone and Tunbridge Wells NHS Trust that we reported on earlier this year.

Read more below to find out what the decision means for your bank worker arrangements and how to protect your organisation from similar claims.

Background

The Claimant was a Health Care Assistant working through the Trust’s internal bank. Following an incident on the ward on which the Claimant worked, he was temporarily restricted from the Trust’s bank, pending investigation into the incident, meaning he could not access shifts. The restriction lasted some months before being lifted. The Claimant brought a claim for unlawful deduction of wages contrary to section 13 Employment Rights Act 1996 (s13 ERA) arguing that there was an implied term that he was entitled to be paid average wages during the suspension period, so long as there was work available for him to do.

The Employment Tribunal (ET) dismissed this claim, and the Claimant appealed to the EAT.

The EAT’s decision

The EAT dismissed the appeal, finding that:

• There is a clear distinction between employees and casual workers, and the claim conflated the position of a substantive employee who was suspended, with that of a casual bank worker who was not offered shifts.
• The Claimant’s contract only expressly obliged the Trust to pay him in respect of a period during which work had been specifically offered and accepted.
• It was unnecessary to imply into a bank contract an obligation to pay a bank worker during a period where they were not offered shifts, in circumstances where the contractual relationship was clear that there was no obligation on the Trust to offer work, and no obligation on the bank worker to accept it.

What to take away

This will be a welcome decision to NHS Trusts, and other organisations that have similar casual worker arrangements. There is a clear distinction between:

• substantive employees - who are normally entitled to be paid during periods of suspension (unless their employment contracts specifically state that no salary will be payable, which is rare), and
• workers on bank or zero-hours contracts - Where payment of wages is for work done, there is no obligation on either party to offer or accept work, and the default position is therefore that they are not entitled to any pay during a period where shifts are not being offered (unless their contact expressly provides for continued payment).

While there is now some clarity regarding the right to continued payment of wages to a bank worker or person on a zero hours contract during a suspension, we would always recommend that, where possible, you should set out the position explicitly in contracts or bank agreements as necessary.

How Capsticks can help

We work hard to be the firm of choice for the NHS and other organisations who work to make a difference. Our employment law and HR experts have significant experience of supporting employers by drafting contractual documentation for both workers and employees, reviewing bank work arrangements and advising on issues arising out of them, including on claims relating to employment status and unlawful deductions from wages. For further information on how we might assist your organisation, please contact Jessica Blackburn, Lee Carroll or Jonathan Lewis.