1.1. In these Terms the following definitions apply:
“Agency Worker” means the individual who is Introduced by the Employment Business to provide services to the Hirer;
“Assignment” means assignment services to be performed by the Agency Worker for the Hirer for a period of time during which the Agency Worker is supplied by the Employment Business to work temporarily for and under the supervision and direction of the Hirer;
“Assignment Details Form” means confirmation of the assignment details agreed with the Hirer prior to commencement of the Assignment;
“AWR” means the Agency Workers Regulations 2010
“AWR Claim” means any complaint or claim to a tribunal or court made by or on behalf of the Agency Worker against the Hirer and/or the Employment Business for any breach of the AWR;
“Calendar Week” means any period of seven days starting with the same day as the first day of the First Assignment;
“Charges” means the Employment Business’s charges calculated in accordance with clause 6 and as may be varied from time to time in accordance with these Terms;
“Comparable Employee” means as defined in Schedule 1 to these Terms;
“Commencement Date” means [date] and for the avoidance of doubt all the provisions of these Terms shall be deemed to become effective at this date
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003
“Confidential Information” means any non-public business, financial, technical, or commercial information (in any form) relating to the Hirer or Employment Business, except information already public or lawfully obtained elsewhere, provided to the Agency Worker or any third party in relation to the Assignment whether before or after the date of these Terms;
“Control” means owning more than 50% of an entity’s shares or having the power to direct its management, whether through ownership, voting rights, contracts, or other means, and "Controls" and "Controlled" shall be construed accordingly;
“Data Protection Laws” means the Data Protection Act 2018, the General Data Protection Regulation (EU 2016/679) and any applicable statutory or regulatory provisions in force relating to the protection and transfer of personal data;
“Engagement” means the engagement (including the Agency Worker’s acceptance of the Hirer’s offer), employment or use of the Agency Worker by the Hirer or by any third party to whom the Agency Worker has been introduced by the Hirer, on a permanent or temporary basis, whether under a contract of service or for services; under an agency, licence, franchise or partnership agreement; or any other engagement; or through a limited company of which the Agency Worker is an officer, employee or other representative; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;
“First Assignment” means:
(a) the relevant Assignment; or
(b) if, prior to the relevant Assignment:
(i) the Agency Worker has worked in any assignment in the same role with the relevant Hirer as the role in which the Agency Worker works in the relevant Assignment; and
(j) the relevant Qualifying Period commenced in any such assignment, that assignment (an assignment being (for the purpose of this defined term) a period of time during which the Agency Worker is supplied by one or more Temporary Work Agencies to the relevant Hirer to work temporarily for and under the supervision and direction of the relevant Hirer);
“Hirer” means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) to whom the Agency Worker is Introduced;
“Hirer's Group” means (a) any individual, company, partnership, statutory body or other entity which from time to time Controls the Hirer, including (but not limited to) as a holding company as defined in section 1159 of the Companies Act 2006; and (b) any company, partnership, statutory body or other entity which from time to time is Controlled by or is under common Control with the Hirer, including (but not limited to) as a subsidiary or holding company as defined in section 1159 of the Companies Act 2006;
“Introduction” means (i) the passing to the Hirer of a curriculum vitae or information which identifies the Agency Worker; or (ii) the Hirer’s interview of the Agency Worker (in person or by telephone or by any other means), following the Hirer’s instruction to the Employment Business to supply a temporary worker; or (iii) the supply of the Agency Worker; and, in any case, which leads to an Engagement of the temporary worker or the Agency Worker; and “Introduced” and "Introducing" shall be construed accordingly;
“Losses” means all losses, liabilities, damages, costs, expenses, fines, penalties or interest, whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands;
“Period of Extended Hire” means any additional period that the Hirer wishes the Agency Worker to be supplied for beyond the duration of the original Assignment or series of Assignments as an alternative to paying a Transfer Fee;
“Qualifying Period” means 12 continuous Calendar Weeks during the whole or part of which the Agency Worker is supplied by one or more Temporary Work Agencies to work temporarily for the Hirer in the same role, and as further defined in Schedule 1 to these Terms;
“Relevant Period” means whichever ends the later of (a) the period of 8 weeks commencing on the day after the last day on which the Agency Worker worked for the Hirer having been supplied by the Employment Business; or (b) the period of 14 weeks commencing on the first day on which the Agency Worker worked for the Hirer having been supplied by the Employment Business or 14 weeks from the first day of the most recent Assignment where there has been a break of more than 6 weeks (42 days) since any previous assignment;
“Relevant Terms and Conditions”means terms and conditions relating to pay, the duration of working time, night work, rest periods, rest breaks and annual leave that are ordinarily included in the contracts of employees or workers (as appropriate) of the Hirer whether by collective agreement or otherwise and including (for the avoidance of doubt and without limitation) such terms and conditions that have become contractual by virtue of custom and practice, including copies of all relevant documentation;
“Remuneration” includes gross base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances,
inducement payments, the benefit of a company car and all other payments and taxable (and, where applicable, non-taxable) emoluments payable to or receivable by the Agency Worker for services provided to or on behalf of the Hirer or any third party.
“Safeguarding Legislation” means the Safeguarding Vulnerable Persons Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007;
“Temporary Work Agency” means as defined in Schedule 1 to these Terms;
“Terms” means these terms of business (including the attached schedules) together with any applicable Assignment Details Form;
“Transfer Fee” means the fee payable in accordance with clause 8 of these Terms and Regulation 10 of the Conduct Regulations;
“Vulnerable Person” means any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care or attention, and includes any person under the age of eighteen; and
“WTR” means the Working Time Regulations 1998 and/ or the Working Time Regulations (Northern Ireland) 1998.
1.2. Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3. The headings contained in these Terms are for convenience only and do not affect their interpretation.
1.4. Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of these Terms) and all subordinate legislation made (before or after these Terms) under it from time to time.
2.1. To enable the Employment Business to comply with its obligations under the Conduct Regulations the Hirer undertakes to provide to the Employment Business details of the position which the Hirer seeks to fill, including the following:
2.1.1. the type of work that the Agency Worker would be required to do;
2.1.2. the location and hours of work;
2.1.3. the experience, training, qualifications and any authorisation which the Hirer considers necessary or which are required by law or any professional body
for the Agency Worker to possess in order to work in the position; any risks to health or safety known to the Hirer and what steps the Hirer has taken to prevent or control such risks;
2.1.4. the date the Hirer requires the Agency Worker to commence the Assignment; and
2.1.5. the duration or likely duration of the Assignment.
2.2. The Hirer must provide any information requested to help the Employment Business meet its Working Time Regulations duties and not cause a breach. If the Hirer needs the Agency Worker to work over 48 hours in any week, it must notify the Employment Business before the Assignment or the start of that week.
2.3. The Hirer will comply with its obligations under Regulation 12 (Rights of agency workers in relation to access to collective facilities and amenities) and 13 (Rights of agency workers in relation to access to employment) of the AWR.
2.4. To enable the Employment Business to comply with its obligations under the AWR, the Hirer undertakes as soon as possible prior to the commencement of each Assignment and during each Assignment (as appropriate) and at any time at the Employment Business’s request:
2.4.1. to inform the Employment Business about any weeks the Agency Worker has worked in a similar role with the Hirer via another party before or during the Assignment that may count toward the Qualifying Period;
2.4.2. where clause 2.4.1 applies, to provide the Employment Business with all the details of such work which may count towards the Qualifying Period, including dates, locations, and any other information requested by the Employment Business;
2.4.3. where clause 2.4.1 applies, to inform the Employment Business if she/he has:
2.4.3.1. completed two or more assignments with the Hirer;
2.4.3.2. completed at least one assignment with the Hirer and one or more earlier assignments with any member of the Hirer's Group; and/or
2.4.3.3. worked in more than two roles during an assignment with the Hirer and on at least two occasions worked in a role that was not the same role as the previous role;
2.4.4. save where the Agency Worker will not complete the Qualifying Period during the term of the Assignment, to:
2.4.4.1. provide the Employment Business with written details of the basic working and employment conditions the Agency Worker would be entitled to for doing the same job if the Agency Worker had been recruited directly by the Hirer as an employee or worker at the time the Qualifying Period commenced or with those of a Comparable Employee, such basic working and employment conditions being the Relevant Terms and Conditions;
2.4.4.2. inform the Employment Business in writing whether the Relevant Terms and Conditions provided are those of a
hypothetical directly recruited employee or worker or those of a Comparable Employee;
2.4.4.3. if the Relevant Terms and Conditions provided are those of a Comparable Employee, provide the Employment Business with a written explanation of the basis on which the Hirer considers that the relevant individual is a Comparable Employee; and
2.4.4.4. inform the Employment Business in writing of any variations in the Relevant Terms and Conditions made at any time during the relevant Assignment after the Qualifying Period commenced; and
2.4.5. save where the Agency Worker will not complete the Qualifying Period during the term of the Assignment, to provide the Employment Business with written details of its pay and benefits structures and appraisal processes and any variations of the same.
2.5. In addition, for the purpose of awarding any bonus to which the Agency Worker may be entitled under the AWR, the Hirer will:
2.5.1. integrate the Agency Worker into its relevant performance appraisal system;
2.5.2. assess the Agency Worker's performance;
2.5.3. provide the Employment Business with copies of all documentation relating to any appraisal of the Agency Worker, including without limitation written details of the outcome of any appraisal and the amount of any bonus awarded; and
2.5.4. provide the Employment Business with all other assistance the Employment Business may request in connection with the assessment of the Agency Worker's performance for the purpose of awarding any bonus.
2.6. The Hirer will comply with all the Employment Business’s requests for information and any other requirements to enable the Employment Business to comply with the AWR.
2.7. The Hirer warrants that:
2.7.1. all information and documentation supplied to the Employment Business in accordance with clauses 2.4, 2.5 and 2.6 is complete, accurate and up-to-date; and
2.7.2. it will, during the term of the relevant Assignment, immediately inform the Employment Business in writing of any subsequent change in any information or documentation provided in accordance with clauses 2.4, 2.5 and 2.6.
2.8. Without prejudice to clauses 10.7 and 10.8, the Hirer shall inform the Employment Business in writing of any:
2.8.1. oral or written complaint the Agency Worker makes to the Hirer which is or may be a complaint connected with rights under the AWR; and
2.8.2. written request for information relating to the Relevant Terms and Conditions that the Hirer receives from the Agency Worker
as soon as possible but no later than 7 calendar days from the day on which any such oral complaint is made to or written complaint or request is received by the Hirer and the Hirer will take such action and give such information and assistance as the Employment Business may request, and within any timeframe requested by the Employment Business, in order to resolve any such complaint or to provide any such information in a written statement to the Agency Worker within 28 days of the Hirer's receipt of such a request in accordance with Regulation 16 of the AWR and the Hirer will provide the Employment Business with a copy of any such written statement.
2.9. The Hirer undertakes that it knows of no reason why it would be detrimental to the interests of the Agency Worker for the Agency Worker to fill the Assignment.
3.1. When Introducing an Agency Worker to the Hirer the Employment Business shall inform the Hirer:
3.1.1. of the identity of the Agency Worker;
3.1.2. that the Agency Worker has the necessary or required experience, training, qualifications and any authorisation required by law or a professional body to work in the Assignment;
3.1.3. that the Agency Worker is willing to work in the Assignment; and
3.1.4. of the Charges.
3.2. If information is not provided in writing, it must be confirmed by paper or electronic means within 3 business days following, save where the Agency Worker is Introduced for an Assignment in the same position as one in which the Agency Worker had previously been supplied within the previous 5 business days and such information has already been given to the Hirer, unless requested again by the Hirer.
4.1. At the end of each week of an Assignment (or at the end of the Assignment, if shorter), the Hirer shall sign the timesheet to confirm the Agency Worker’s hours worked.
4.2. Signing the timesheet by the Hirer confirms hours worked. If the Hirer disputes the hours claimed, they must promptly inform and fully cooperate with the Employment Business to verify hours, if any, were worked by the Agency Workers. Failure to sign the timesheet does not absolve the Hirer of its obligation to pay the Charges in respect of the hours worked.
4.3. The Hirer shall not be entitled to decline to sign a timesheet on the basis that it is dissatisfied with the work performed by the Agency Worker. In the event that the Hirer is dissatisfied with the Agency Worker the provisions of clause 10 shall apply.
5.1. Where:
5.1.1. Agency Worker requires specific qualifications or authorisations to work on the Assignment, the Employment Business will take reasonable steps to obtain and provide copies to the Hirer; and
5.1.2. in addition, if the Assignment involves working with, caring for or attending Vulnerable persons, the Employment Business will take reasonable steps to obtain and provide the Hirer with two references from persons who are not relatives of the Agency Worker;
and such other reasonably practicable steps as are required to confirm that the Agency Worker is suitable for the Assignment. If the Employment Business has been unable to fully obtain the above information, it shall inform the Hirer of the steps it has taken to obtain this information.
5.2. The Hirer must inform the Employment Business at the outset if the Assignment involves working with Vulnerable persons or engage in regulated activity as defined in the Safeguarding Legislation.
5.3. The Hirer must provide any information needed to help the Employment Business comply with the Safeguarding Legislation and select a suitable Agency Worker.
5.4. If the Hirer removes an Agency Worker from an Assignment in circumstances which would require the Employment Business to provide information under the Safeguarding Legislation, the Hirer must give the Employment Business all required information to meet its legal duties.
6.1. The Hirer must supervise the Agency Worker and may end the Assignment immediately if unsatisfied either by instructing the Agency Worker to leave the Assignment immediately, or by directing the Employment Business to remove the Agency Worker. The Employment Business may, in its absolute discretion, in such circumstances, reduce or cancel the Charges for the time worked by that Agency Worker, provided that the Hirer has notified the Employment Business immediately that they have asked the Agency Worker to leave the Assignment or the Assignment terminates:
6.1.1. within 4 hours of the Agency Worker commencing the Assignment where the Assignment is for more than 7 hours; or
6.1.2. within 2 hours for Assignments of 7 hours or less;
and notifying the unsuitability of the Agency Worker in writing to the Employment Business within 48 hours of the termination of the Assignment.
6.2. If the Employment Business reasonably believes an Agency Worker is unsuitable, it may terminate the Assignment immediately without notice or liability. The Hirer remains liable for charges up to termination.
6.3. The Hirer shall notify the Employment Business immediately and without delay and in any event within 2 hours if the Agency Worker fails to attend work or has notified the Hirer that they are unable to attend work for any reason.
Any of the Hirer, the Employment Business or the Agency Worker may terminate an Assignment at any time without prior notice and without liability (except in the case of termination by the Hirer, who shall be liable for any Charges due under clause 6 above).
8.1. All Agency Worker information is confidential and must only be used for work-finding, in compliance with Data Protection Laws.
8.2. The Employment Business will keep all Hirer terms confidential and use them only for AWR compliance.
8.3. Confidential information relating to the Employment Business’s business must be kept confidential, except information which is in the public domain.
All intellectual property rights from the Assignment belong to the Hirer. Accordingly, the Employment Business shall use its reasonable endeavours to ensure that the Agency Worker signs documents or take actions to confirm this ownership.
10.1. The Employment Business will use reasonable efforts to provide suitable Agency Workers but accepts no liability for any loss, expense, damage, or delay arising from a failure to provide a Agency Worker or from a Agency Worker’s negligence, misconduct, or departure, except for liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude under law.
10.2. Agency Workers provided under these Terms are not employees of the Employment Business and are under the Hirer’s supervision and direction of the Hirer from the time they report to take up duties and for the duration of during the Assignment. The Hirer is responsible for all acts or omissions of the Agency Worker as if on its own payroll.
10.3. The Hirer shall advise the Employment Business of any special health and safety matters about which the Employment Business is required to inform the Agency Worker and about any requirements imposed by law or by any professional body, which must be satisfied if the Agency Worker is to fill the Assignment.
10.4. The Hirer must comply with all applicable laws and regulations for its staff, including health and safety and data protection, and provide appropriate Employer’s and Public Liability Insurance cover for the Agency Workers during all Assignments.
10.5. The Hirer must not request Agency Workers to cover duties of staff involved in official industrial action or those covering for such staff.
10.6. The Hirer shall indemnify and keep the Employment Business indemnified against any losses arising from an Assignment or arising out of any non-compliance with, and/or as a result of breach of, these Terms by the Hirer.
10.7. The Hirer shall inform the Employment Business in writing of any AWR Claim which comes to the notice of the Hirer as soon possible but no later than 7 calendar days from the day on which any such AWR Claim comes to the notice of the Hirer.
10.8. If the Agency Worker brings or threatens an AWR claim, the Hirer must provide any information or assistance the Employment Business requests, within requested timeframes and at the Hirer’s cost.
All notices under these Terms must be in writing and delivered personally, by first class prepaid post, email, or facsimile to the registered office or any other notified address. Notices are deemed served when delivered by hand, 48 hours after posting, or when the email or facsimile is sent.
If any provision of these Terms is found by a competent authority to be unenforceable, that provision shall be severed, and the rest of the Terms will remain valid to the fullest extent allowed by law.
None of the provisions of these Terms are intended to be for the benefit of or enforceable by third parties and the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.
