Conduct Regulations 2003: the Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319).
Engage: the employment of a Temporary Worker or engagement directly or indirectly through any employment business other than through the Employment Business (whether for a definite or indefinite period) as a direct result of any Introduction or Assignment to the Client and the terms Engaged or Engagement shall be construed accordingly.
Introduce: the provision to the Client of information by the Employment Business by way of a curriculum vitae or in such format as the Client may from time to time require which identifies the Worker and Introduction and Introduced shall be construed accordingly.
Other Qualifying Payments: any remuneration payable to the Temporary Worker (other than their basic hourly rate), which is not excluded by virtue of regulation 6 of the AWR 2010, such as any overtime, shift premium, commission or any bonus, incentive or rewards which are directly attributable to the amount or quality of work done by a Temporary Worker and are not linked to a financial participation scheme (as defined by the AWR 2010).
Qualifying Temporary Worker: any Temporary Worker who at the relevant time is entitled to the rights conferred by regulation 5 of the AWR 2010 and in particular has been provided to the Client (whether by the Employment Business or any third party) for the Qualifying Period and in respect of whom the Employment Business has complied with its obligations under clause 3 (Employment Business’s obligations).
Temporary Worker: a Worker Introduced and supplied by the Employment Business to the Client to provide services to the Client not as an employee of the Client, who is deemed to be an agency worker for the purposes of regulation 3 of the AWR 2010.
Valid Opt-Out: means written notification from a Temporary Worker and the individual provided by that Temporary Worker in accordance with regulation 32(9) of the Conduct Regulations 2003, as amended from time to time.
1.5 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of:
For the purposes of determining whether a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be construed so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
1.7 Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.9 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of Contract
2.1 These terms constitute the contract between the Employment Business and the Client for the supply of Temporary Workers by the Employment Business to the Client and are deemed to be accepted by the Client by virtue of its request for, interview with or Engagement of the Temporary Worker or the passing of any information about the Temporary Worker to any third party following an Introduction.
2.2 For the purposes of the Conduct Regulations 2003, the Employment Business acts as an employment business in relation to the Introduction and supply of Temporary Workers.
2.3 These terms contain the entire agreement between the parties and prevail over any other terms of business or purchase conditions that the Client seeks to incorporate or impose, or which are implied by law, trade custom, practice or course of dealing.
2.4 No variation or alteration to these terms shall be valid unless the details of such variation are agreed between the Employment Business and the Client and are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.
3. Employment Business’s Obligations
3.1 The Employment Business agrees to search, in the Territory for Workers for the Client as Temporary Workers who meet the Client’s stipulated minimum criteria for the Actual Vacancies.
3.2 The Employment Business shall provide any information about the Workers to the Client’s HR department. Without prejudice to any other provision of this agreement, the Employment Business shall as accurately as reasonably practicable and promptly complete and otherwise process and provide information in accordance with such ordering and other monitoring, invoicing or reporting systems (including any IT platforms or programs) which the Client may from time to time reasonably designate.
3.3 The Employment Business shall Screen Workers before Introducing them to the Client and shall Introduce to the Client only Workers who meet the minimum criteria for the position stipulated by the Client in accordance with clause 4 and who have an interest in the positions for which they are Introduced. The Employment Business shall Introduce only Workers who have the right to work in the Territory.
3.4 Where a Worker is required by law or any professional body to have any qualifications, authorisations or certification to work on the Assignment or the Assignment involves working with any Vulnerable Persons, the Employment Business shall take all reasonably practicable steps to obtain, and offer to provide copies of, any relevant qualifications or authorisations or certification and two references. If the Employment Business is unable to fully comply with these requirements, it shall inform the Client of the steps it has taken to obtain the necessary information.
(b) the position which the Client seeks to fill, including the type of work the Temporary Worker in that position would be required to do, the location at which, and the hours during which, the Temporary Worker would be required to work, and any risk to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
(c) the experience, training, qualifications and any authorisation which the Client considers are necessary, or which are required by law, or by any professional body, for the Temporary Worker to possess in order to work in the position; and
5.1 If, following the supply of a Temporary Worker by the Employment Business to the Client within the Relevant Period, the Client Engages the Temporary Worker, the Client will pay the Employment Business the Introduction Fee at the rate of 12% (plus vat) of the first year’s salary. Where the Engagement is after 8 consecutive weeks of supply of the same Temporary Worker the Introduction Fee will be capped at £950 (plus VAT).
5.2 The Introduction Fee will not be payable if the Client gives written notice to the Employment Business that it intends to continue the hire of the Temporary Worker for a further period of three months (Extended Assignment) before it Engages the Temporary Worker other than through the Employment Business.
(c) if the Client chooses an Extended Assignment, but engages the Temporary Worker before the end of the Extended Assignment, the Introduction Fee may be charged by the Employment Business, reduced proportionately to reflect the amount of the Extended Assignment paid for by the Client.
6.1 The Employment Business shall notify the Client immediately if it believes that any Temporary Worker is unsuitable for the Assignment or if it becomes aware of any matter that indicates that a Temporary Worker may be unsuitable for the Assignment or is inconsistent with any information previously provided including where a Temporary Worker ceases to have the appropriate skills, approvals or a right to work in the United Kingdom.
6.2 If the Client reasonably decides that a Temporary Worker is unsuitable to perform the Assignment (an Unsatisfactory Temporary Worker), then the Client shall notify the Employment Business in writing of that fact giving the grounds for its dissatisfaction with the Unsatisfactory Temporary Worker.
(b) more than 48 hours after commencement of the Assignment, then the Assignment shall terminate at the end of the day on which the Client notified the Employment Business of the Unsatisfactory Temporary Worker, and Temporary Worker Fees shall be payable up to and including the date of such termination.
6.4 The Employment Business or the Client may terminate an Assignment at any time without prior notice and without liability. The Client may change its requirements at any time before the commencement of the Assignment without any liability of the Client to the Employment Business whatsoever, save for the payment of Temporary Worker Fees due and payable for services already performed. Such cancellation or amendment shall be effective immediately upon the Client giving notice to the Employment Business (which may be given by telephone, email or in writing).
7.1 The Client will pay the Employment Business Temporary Worker Fees in respect of Temporary Workers as agreed by the parties in writing (Temporary Worker Fees). The Temporary Worker Fees comprise the Temporary Worker’s pay and holiday pay, and include the Employment Business’s commission and employer’s National Insurance contributions. When booking a Temporary Worker for an Assignment, the Employment Business shall advise the Client in writing of the agreed Temporary Worker Fees for that Temporary Worker. The following conditions apply to the Temporary Worker Fees:
(c) the Client acknowledges that it shall not decline to sign a time sheet on the basis that it is dissatisfied with the work performed by the Temporary Worker. In cases of unsuitable or unsatisfactory work the provisions of clause 6.2 shall apply.
(e) the Employment Business shall invoice the Client monthly in arrears and invoices are payable within 30 days of receipt. No fee is incurred by the Client until the Temporary Worker has commenced the Assignment; and
7.3 If the Client fails to make a payment due to the Employment Business under this agreement by the due date, then the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
8.1 The agreement may be terminated by either party without notice and with immediate effect.
(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or a solvent reconstruction;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of the other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of the other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8(b) to clause 8(j) (inclusive); or
9.1 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
9.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
10.2 The Employment Business shall promptly on request provide the Client or the Client’s representatives with copies of such records referred to in clause 10.1 as the Client may from time to time reasonably request.
11.1 The Employment Business shall be responsible for deduction and payment of all tax, National Insurance contributions and other levies in respect of persons employed by the Employment Business or Temporary Workers.
(c) a restriction not to disclose any confidential information of the Client or of any of the Client’s customers or suppliers or agents (direct or indirect), which they may acquire during the course of the Assignment.
the Employment Business shall advise the Client of the applicable Temporary Worker Fees, including any Other Qualifying Payments which may be payable.
11.4 Subject to clause , the Client shall at all times comply with its obligations under the AWR 2010, including providing any Temporary Workers with access to collective facilities and amenities and employment opportunities subject to and in accordance with regulations 12 and 13 of the AWR 2010.
11.5 The Employment Business shall Indemnify the Client against any liability, cost, claim, award or any other expense incurred by the Client arising out of a breach or alleged breach by the Employment Business, its subcontractors or any other intermediaries, of the AWR 2010 save to the extent that the Client is, in accordance with the AWR 2010, liable for the same.
11.6 The Client shall indemnify the Employment Business against any liability, cost, claim, award or any other expense incurred by the Employment Business arising out of a breach or alleged breach by the Client, its subcontractors or any intermediaries, of the AWR 2010, save to the extent that the Employment Business is in accordance with AWR 2010, liable for the same.
11.7 If either party receives an allegation that there has been a breach of the AWR 2010 in relation to the supply of a Temporary Worker to the Client by the Employment Business (whether that allegation has been made as a request for information under regulation 16 of the AWR 2010 or otherwise), it shall provide a copy of that allegation to the other party within seven days of receipt. The parties shall co-operate with each other in responding to that allegation, which shall include supplying any information which may be reasonably requested by the other party, and complying with any reasonable requests in relation to the contents of any response.
11.8 The Client shall indemnify the Employment Business against any costs, claims or liabilities incurred directly or indirectly by the Employment Business out of any breach of this agreement by the Client.
11.9 The provisions of this clause 11 shall survive termination of this agreement.
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause .
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause ; and
Agreed Purposes: compliance with the terms of the agreement.
Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation.
Data Protection Legislation:
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Permitted Recipients: the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement.
Shared Personal Data: the personal data to be shared between the parties under this agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject: name, address, phone number, national insurance number, qualifications, driving licence number, date of birth.
13.2 This clause 13 sets out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
13.3 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
(b) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this agreement;
(f) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
(g) not transfer any personal data received from the Data Discloser outside the UK unless the transferor ensures that (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.
Neither party shall, either on its own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of six months from, the end of the term of this agreement, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any key executive of the other party who has worked on the services provided under this agreement at any time during the term of this agreement other than by means of a national advertising campaign open to all-comers and not specifically targeted at such executives of the other party.
15.1 References to liability in this clause 16 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
15.2 Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
15.3 Subject to clause 16.1 (no limitations in respect of deliberate default), and clause 16.2 (liabilities which cannot legally be limited) each party’s total liability to the other shall not exceed £5,000,000[IA1] .
16.1 Neither party shall assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
16.2 The Employment Business shall not subcontract or delegate in any manner any or all of its obligations under this agreement to any third party or agent without the prior written consent of the Client. It shall be a condition of such consent that the subcontractor signs and observes an agreement containing terms at least as onerous as those contained in this agreement. Without prejudice to this clause, the Employment Business shall in all cases retain sole responsibility for the performance of the tasks assigned to it under this agreement, regardless of the use of authorised or unauthorised subcontractors and the Employment Business shall be liable for the acts and omissions of any subcontractor (of any tier and authorised and unauthorised) or any intermediaries whatsoever as if they were the acts and omissions of the Employment Business itself.
17.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement, including payment, if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.
21.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
21.2 If any provision or part-provision of this agreement is deemed deleted under clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23.1 With the exception of notices given by the Client pursuant to clause 6.4, which may be given by telephone, any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).);
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.