Although tribunals have the power to imply certain terms into a contract of employment, the Employment Appeal Tribunal (EAT) held in Agbeze v Barnet, Enfield and Haringey Mental Health NHS Trust that they could not imply a term that would materially alter the nature of the contractual relationship. In particular, they could not imply the right to payment during a period of suspension of a casual worker.
Mr Agbeze worked as a healthcare assistant on the trust’s “bank” system, which meant that he was offered work on an “as and when” basis to suit the needs of the trust. His contract stated expressly that the trust was not obliged to offer him any work, nor was he obliged to accept it. It also stated that the trust only had to pay him for assignments that it offered to him and which he accepted.
He was suspended from work (and therefore not offered any assignments) between January and May 2018 on the basis that he had failed to report an assault in contravention of the trust’s Management of Incidents Policy and Raising Concerns at Work Policy.
Mr Agbeze brought a claim for unlawful deduction from wages. Although he did not have a term in his contract stating that he was entitled to be paid whilst suspended, he argued that “if an organisation for whom a person is working suspends the person, then, in the absence of an express term to the contrary, the organisation has to pay the employee”. In effect, he argued that his contract contained an implied term that he was entitled to be paid average wages during the suspension period, as long as the trust had work for him to do.
Rejecting his claim, the tribunal held that Mr Agbeze’s contract did not contain either an express or implied term that he should be paid during a period of suspension. Nor was there any reason to imply such a term into his contract, not least because it would contradict the whole point of the bank worker contract.
Rejecting the appeal, the EAT held that Mr Agbeze had wrongly conflated the conventional concept of suspension of a full-time employee with being denied the opportunity to be given bank work for a period of time.
This, said the EAT, “reflects a real and significant difference between the position of an employee under a permanent contract of employment, where the starting point under the contract is that they have an ongoing right to be paid; and the position of a bank worker, where the starting point is that the hirer has no obligation to give them any work, and they only have a right to be paid for such work as they are given and have carried out. The contractual baseline in the two types of case is different. To conflate the position of a suspended conventional employee with that of a restricted casual worker failed to respect the fundamental nature and terms of the underlying contractual relationship”.
As for implying a term into the contract along the lines suggested by Mr Agbeze, the EAT held that this argument could not be supported by the principles set out in case law. In particular, the EAT held that to imply such a term would be “of a materially different kind from implied terms, such as the duty of trust and confidence, which reflect features that are inherent in all working relationships … The introduction of such a term would materially alter the nature of contractual relationships of this type”.
Bank contracts do not offer much benefit to workers, there are significantly fewer rights than a contract of employment. A bank contract worker unfortunate enough to find themselves suspended by their employer should check their contract of employment to see what rights they are entitled to.
In limited circumstances, it is possible to show that there are terms that are implied into the contract of employment, for example if a custom or practice is reasonable, notorious, and certain enough to be incorporated. However, in the current case, Mr Agbeze’s arguments failed, not least because the term he was arguing for was against the “casual” nature of the contractual arrangement between him and the employer.