Care worker provider succeeds in action for over £30,000 of outstanding pay from former client in Dundee Sheriff Court

About this case:

• Citation:
  [2024] SC DUN 39
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Jillian Martin-Brown

Pursuer Staffscanner Ltd supplied temporary healthcare workers to Hudson Healthcare Ltd via an app it operated, and it argued the terms and conditions of use overwrote the terms proposed by the defender. The defender’s position was that no sum was due as the pursuer’s workers had breached its own terms and conditions.

The case was heard by Sheriff Jillian Martin-Brown. Ms Niven, solicitor, appeared for the pursuer and Mr Casiday, solicitor, for the defender.

Terms overwritten

In January 2021, the pursuer approached the defender to offer their services. The defender asked the pursuer to agree to their terms and conditions. On 12 January 2021, an employee of the pursuer signed the care home terms and conditions and returned it to the defender via email. Paragraph 2 of the section on bookings provided that agency staff required to sign in and out of their shift using a booking app, Careblox, and only shifts processed through the app accompanied by a timesheet signed by an authorised person would be invoiced.

Following a demonstration of the app, the defender was sent a secure link to set up a profile on the Staffscanner app. The defender’s managers began booking staff through the app for two care homes it operated. All persons who used the app were required to accept Staffscanner’s terms and conditions every time they logged in. The defender’s managers booked 816 workers during the period from June 2021 to August 2022, with invoices issued by Staffscanner on a weekly basis.

Contrary to the defender’s terms and conditions, some administrative requirements were not complied with for all workers. The sum of £30,567.45 remained outstanding and represented the sum sued for. The defender’s position was it was entitled to withhold payment because their terms and conditions excluded any right to be paid when administrative requirements were not complied with. However, the pursuer’s case was that its terms and conditions took precedence.

For the pursuer it was submitted that the agreement between the parties was formed when employees of the defender accepted the licence terms and conditions in the Staffscanner app when they logged in to post shifts and assign workers. The solicitor for the defender submitted that an employee of the pursuer had signed the care home terms and conditions, and no explanation was offered for why he would do so if he anticipated that these terms would be overwritten in the space of a week.

Fired the last shot

In her decision, Sheriff Martin-Brown observed that this was a classic “battle of the forms” case, saying: “Hudson clearly did not intend for the agency’s terms and conditions to govern the contract between them. However, viewed objectively, Hudson accepted the counter offers as a result of its conduct in creating an account on receipt of a secure link from Staffscanner using a password of its choice; setting up profiles for use at the homes; permitting their managers to book staff via the app by virtue of supplying them with the log in details, and their managers ticking a box confirming agreement to the agency’s terms and conditions before being able to book staff via the app.”

She continued: “When logging in, the managers had to agree to Staffscanner’s terms of business by ticking a box. They were not able to proceed with logging in if they had not ticked the box. The agency terms and conditions were readily available via a hyperlink. They were updated regularly and could be accessed at any time via the client dashboard or via Staffscanner’s website. The agency terms and conditions were therefore sufficiently drawn to the attention of Hudson and its managers.”

Noting that both parties assumed their own terms would prevail, Sheriff Martin-Brown said: “By virtue of the requirement to tick the box confirming agreement to the agency’s terms and conditions, Staffscanner ensured that it fired the last shot in the battle of forms. Hudson did not avail itself of the careful drafting seen in TRW Ltd v Panasonic (2021), providing that the care home terms and conditions would be incorporated into any subsequent contract between the parties for the provision of agency workers. Had it done so, it is possible that its first shot would have prevailed.”

She concluded: “By contrast, Staffscanner included an entire agreement clause in the agency terms and conditions. In light of the provisions of section 1(3) of the Contract (Scotland) Act 1997, that is conclusive on the matter. Accordingly, the agency terms and conditions govern the contract between the parties. Failure to verify hours does not absolve Hudson of its obligation to pay the temporary worker fees in respect of the hours actually worked.”

Decree was therefore granted in favour of the pursuer.