PHOENIX RESOURCING SERVICES (HOLDINGS)LTD (PRS) AND ALL PRS GROUP COMPANIES
TERMS AND CONDITIONS FORTHE SUPPLY OF TEMPORARY WORKERS
1.1.In these Terms the following definitions apply:
"Agency Worker" means an agency worker as defined under Regulation 3 of the AWR;
“Assessment Tool” the CEST tool or the Off-Payroll status assessment tool licenced to PRS by Kingsbridge Risk Solutions Ltd (or such other third-party assessment tool as PRS may use from time to time);
"Assignment" means assignment services to be performed by the Temporary Worker for the Client for a period of time during which the Temporary Worker is supplied by PRS to work temporarily for the Client;
"Assignment Details Form" means written confirmation of the assignment details agreed with the Client prior to commencement of the Assignment;
"AWR" means the Agency Workers Regulations 2010 (as amended from time to time);
"AWR Claim" means any complaint or claim to a tribunal or court made by or on behalf of the Temporary Worker against the Client and/or PRS 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 hourly charges of PRS calculated in accordance with Clause 7.1 and as may be varied from time to time in accordance with these Terms;
"Client" 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 Temporary Worker is Introduced;
"Client's Group" means (a) any individual, company, partnership, statutory body or other entity which from time to time Controls the Client, 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 Client, including (but not limited to) as a subsidiary or holding company as defined in section 1159 of the Companies Act 2006;
"Comparable Employee" means as defined in Schedule 1 to these Terms;
"Conduct Regulations" means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended from time to time);
"Confidential Information" means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Client or PRS or their business or affairs (including but not limited to these Terms, data, records, reports, agreements, software, programs, specifications, know-how, trade secrets and other information concerning the Assignment) in any form or medium whether disclosed or granted access to whether in writing, orally or by any other means, provided to the Temporary Worker or any third party in relation to the Assignment by the Client or PRS or by a third party on behalf of the Client whether before or after the date of these Terms together with any reproductions of such information in any form or medium or any part(s) of such information;
"Control" means (a) the legal or beneficial ownership, directly or indirectly, of more than 50% of the issued share capital or similar right of ownership; or (b) the power to direct or cause the direction of the affairs and/or general management of the company, partnership, statutory body or other entity in question, whether through the ownership of voting capital, by contract or otherwise, and "Controls" and "Controlled" shall be construed accordingly;
"Data Protection Laws" means all applicable laws and regulations, as amended or updated from time to time, in the United Kingdom relating to data protection, the processing of personal data and privacy, including without limitation, (a) the Data Protection Act 2018; (b) the General Data Protection Regulation (EU) 2016/679; (c) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications); and (d) any legislation that replaces or converts into United Kingdom law the General Data Protection Regulation (EU) 2016/679, the proposed Regulation on Privacy and Electronic Communications or any other law relating to data protection, the processing of personal data and privacy resulting from the United Kingdom leaving the European Union;
“End User” means the company with whom the Client has an agreement and who is the recipient of the services.
"Engagement" means the engagement, employment or use of the Temporary Worker by the Client or any third party to whom the Temporary Worker has been introduced by the Client, directly or indirectly, on a permanent or temporary basis, whether under a contract of service or for services, and/or through a company of which the Temporary Worker is an officer, employee or other representative, an agency, license, franchise or partnership arrangement, or any other engagement; 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 Temporary Worker has worked in any assignment in the same role with the relevant Client as the role in which the Temporary Worker works in the relevant Assignment; and (ii) 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 Temporary Worker is supplied by one or more Temporary Work Agencies to the relevant Client to work temporarily for and under the supervision and direction of the relevant Client);
"Introduction" means (i) the passing to the Client of a curriculum vitae or information which identifies the Temporary Worker; or (ii) the Client's interview of the Temporary Worker (in person or by telephone or by any other means), following the Client's instruction to PRS to supply a temporary worker; or (iii) the supply of the Temporary Worker; and, in any case, which leads to an Engagement of the temporary worker or the Temporary Worker; and "Introduced" and "Introducing" shall be construed accordingly;
"Losses" means all losses, liabilities, damages, costs, expenses 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;
“Off-Payroll” means amendments to Chapter 8; and Chapter 10, Part 2 of Income Tax (Earnings and Pensions) Act 2003;
"Period of Extended Hire" means any additional period that the Client wishes the Temporary Worker to be supplied for beyond the duration of the original Assignment or series of Assignments as an alternative to paying a Transfer Fee;
"PRS" means the member of the group of companies and/or limited liability partnerships of which the parent, or ultimate parent, company is Phoenix Resourcing Services (Holdings) Limited (company no. 04401459) a company incorporated in England and Wales with its registered office at 2nd Floor Regis House, 45 King William Street, London, United Kingdom, EC4R 9AN, identified to the Client by the relevant member/the identity and details of which are printed at the foot of these Terms/which is identified above as the signatory to these Terms and details of which are printed at the foot of these Terms;
"Qualifying Period" means 12 continuous Calendar Weeks during the whole or part of which the Temporary Worker is supplied by one or more Temporary Work Agencies to the relevant Client to work temporarily for and under the supervision and direction of the relevant Client 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 Temporary Worker worked for the Client having been supplied by PRS; and (b) the period of 14 weeks commencing on the first day on which the Temporary Worker worked for the Client having been supplied by PRS 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: (a) pay; (b) the duration of working time; (c) night work; (d) rest periods; (e) rest breaks; and (f) annual leave that are ordinarily included in the contracts of employees or workers (as appropriate) of the Client 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 Temporary Worker for services provided to or on behalf of the Client or any third party. Where a company car is provided, a notional amount of £4000 will be added to the salary in order to calculate PRS' fee;
"Temporary Work Agency" means as defined in Schedule 1 to these Terms;
"Temporary Worker" means the individual who is Introduced by PRS to provide services to the Client;
"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 9 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
"Working Time Regulations" means the Working Time Regulations 1998 (as amended from time to time).
1.2.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.
1.3.Where the context permits, words denoting:
1.3.1.persons shall include bodies corporate and unincorporated associations of persons;
1.3.2.the singular include the plural and vice versa; and
1.3.3.one gender shall include any gender.
1.4.The headings in these Terms are for ease of reference only and shall not affect their interpretation.
1.5.Any reference in these Terms to a Clause is, unless otherwise stated, to a Clause of these Terms.
2.APPLICATION OF THESE TERMS
2.1.These Terms constitute the contract between PRS and the Client for the supply of the Temporary Worker’s services by PRS 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, its acceptance of these Terms online or the passing of any information by the Client about a Temporary Worker to any third party following an Introduction, whichever first occurs. For the avoidance of doubt, these Terms apply whether or not a Temporary Worker is Engaged by the Client for the same type of work as that for which the Introduction was originally effected.
2.2.These Terms contain the entire agreement between the parties and unless otherwise agreed in writing by a director of PRS, these Terms prevail over any terms of business or purchase conditions (or similar) put forward by the Client.
2.3.PRS shall act as an employment business (as defined in Section 13(3) of the Employment Agencies Act 1973 as amended from time to time) when Introducing Temporary Workers for Assignments with the Client.
3.1.To enable PRS to comply with its obligations under the Conduct Regulations the Client undertakes to provide to PRS with details of the position which the Client seeks to fill, including the following:
3.1.1.the type of work that the Temporary Worker would be required to do;
3.1.2.the location and hours of work;
3.1.3.the experience, training, qualifications and any authorisation which the Client considers necessary or which are required by law or any professional body for the Temporary Worker to possess in order to work in the position;
3.1.4.any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
3.1.5.the date the Client requires the Temporary Worker to commence the Assignment;
3.1.6.the duration or likely duration of the Assignment;
3.1.7.details of any End User;
3.1.8.any site regulations, IT access/security/usage policies, health and safety procedures and any other procedures or policies the Client requires the Temporary Worker to adhere to and will provide copies of any such policies/procedure to PRS; and
3.1.9.whether Off-Payroll applies to it.
3.2.The Client will assist PRS in complying with PRS' duties under the Working Time Regulations by supplying any relevant information about the Assignment requested by PRS and the Client will not do anything to cause PRS to be in breach of its obligations under these Regulations. If the Client requires the services of an Temporary Worker for more than 48 hours in any week during the course of an Assignment, the Client must notify PRS of this requirement before the commencement of the Assignment or at the very latest, where this is not reasonably practicable, before the commencement of the week in which the Client requires the Temporary Worker to work in excess of 48 hours.
3.3.The Client 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.
3.4.To enable PRS to comply with its obligations under the AWR, the Client undertakes as soon as possible prior to the commencement of each Assignment and during each Assignment (as appropriate) and at any time at PRS' request:
3.4.1.whether or not the Temporary Worker is an Agency Worker and/or is identified as such in the relevant Assignment Details Form in relation to the relevant Assignment, to inform PRS of any Calendar Weeks since 1 October 2011 in which the relevant Temporary Worker has worked in the same or a similar role with the Client via any third party prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment which count or may count towards the Qualifying Period;
3.4.2.whether or not the Temporary Worker is an Agency Worker and/or is identified as such in the relevant Assignment Details Form in relation to the relevant Assignment, if, since 1 October 2011, the Temporary Worker has worked in the same or a similar role with the Client via any third party prior to the date of commencement of the relevant Assignment and/or works in the same or a similar role with the Client via any third party during the relevant Assignment, to provide PRS with all the details of such work, including (without limitation) details of where, when and the period(s) during which such work was undertaken and any other details requested by PRS;
3.4.3.whether or not the Temporary Worker is an Agency Worker and/or is identified as such in the relevant Assignment Details Form in relation to the relevant Assignment, to inform PRS if, since 1 October 2011, the Temporary Worker has prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment:
(a)completed two or more assignments with the Client;
(b)completed at least one assignment with the Client and one or more earlier assignments with any member of the Client's Group; and/or
(c)worked in more than two roles during an assignment with the Client and on at least two occasions worked in a role that was not the same role as the previous role;
3.4.4.if (as indicated in the relevant Assignment Details Form) the Temporary Worker is an Agency Worker, save where the Temporary Worker will not complete the Qualifying Period during the term of the Assignment, to:
(a)provide PRS with written details of the basic working and employment conditions the Temporary Worker would be entitled to for doing the same job if the Temporary Worker had been recruited directly by the Client 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;
(b)inform PRS 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
3.4.5.if (as indicated in the relevant Assignment Details Form) the Temporary Worker is an Agency Worker, save where the Temporary Worker will not complete the Qualifying Period during the term of the Assignment, to provide PRS with written details of its pay and benefits structures and appraisal processes and any variations of the same.
3.5.In addition, if (as indicated in the relevant Assignment Details Form) the Temporary Worker is an Agency Worker, for the purpose of awarding any bonus to which the Temporary Worker may be entitled under the AWR, the Client will:
3.5.1.integrate the Temporary Worker into its relevant performance appraisal system;
3.5.2.assess the Temporary Worker's performance;
3.5.3.provide PRS with copies of all documentation relating to any appraisal of the Temporary Worker, including without limitation written details of the outcome of any appraisal and the amount of any bonus awarded; and
3.5.4.provide PRS with all other assistance PRS may request in connection with the assessment of the Temporary Worker's performance for the purpose of awarding any bonus.
3.6.The Client will comply with all PRS' requests for information and any other requirements to enable PRS to comply with the AWR.
3.7.The Client warrants that:
3.7.1.all information and documentation supplied to PRS in accordance with Clauses 3.4, 3.5 and 3.6 is complete, accurate and up-to-date; and
3.7.2.it will, during the term of the relevant Assignment, immediately inform PRS in writing of any subsequent change in any information or documentation provided in accordance with Clauses 3.4, 3.5 and 3.6;
3.8.Without prejudice to Clauses 16.7 and 16.8, the Client shall inform PRS in writing of any:
3.8.1.oral or written complaint the Temporary Worker makes to the Client which is or may be a complaint connected with rights under the AWR; and
3.8.2.written request for information relating to the Relevant Terms and Conditions that the Client receives from the Temporary 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 Client and the Client will take such action and give such information and assistance as PRS may request, and within any timeframe requested by PRS, 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 Client's receipt of such a request in accordance with Regulation 16 of the AWR and the Client will provide PRS with a copy of any such written statement.
3.9.The Client undertakes that it knows of no reason why it would be detrimental to the interests of the Temporary Worker for the Temporary Worker to fill the Assignment.
3.10.The Client warrants and undertakes that all information it provides to PRS under these Terms is true and accurate.
4.INFORMATION TO BE PROVIDED BY PRS TO THE CLIENT
4.1.When Introducing a Temporary Worker to the Client PRS shall inform the Client:
4.1.1.of the identity of the Temporary Worker;
4.1.2.that the Temporary Worker has the necessary or required experience, training, qualifications and any authorisation required by law or a professional body to work in the Assignment;
4.1.3.that the Temporary Worker is willing to work in the Assignment;
4.1.4.the duration of the Assignment;
4.1.5.a description of the services to be provided by the Temporary Worker; and
4.2.Where such information is not given in paper form or by electronic means it shall be confirmed by such means by the end of the third business day (excluding Saturday, Sunday and any Public or Bank Holiday) following, save where the Temporary Worker is Introduced for an Assignment in the same position as one in which the Temporary Worker had previously been supplied within the previous 5 business days and such information has already been given to the Client, unless the Client requests that the information be resubmitted.
5.OFF-PAYROLL & STATUS DETERMINATION
5.1.Where Off-Payroll applies to the Client or the End User (as appropriate) and the services are in scope, the Client undertakes and agrees to assess the working practices of the services to be provided during an Assignment and to provide PRS with its status determination and the reasons for the decision (“SDS”) in writing prior to the commencement of the Assignment and to comply with the statutory requirements to notify the Temporary Worker.
5.2.For the purposes of determining whether or not Off-Payroll applies, PRS shall provide the Client with access to the Assessment Tool and shall offer such assistance as the Client may reasonably require in order to enable the Client to produce an SDS and to comply with its statutory obligations in relation to Off-Payroll.
5.3.Where Off-Payroll applies to the Client or the End User (as appropriate) and the services are in scope the Client shall deliver a copy of the relevant SDS to PRS prior to the commencement of the Assignment and shall provide such information to the Temporary Worker as may be necessary to comply with the statutory requirements.
5.4.The Client further undertakes and agrees to notify PRS as soon as reasonably practicable in the event of any changes to information provided under clause 3.1 that occur during the term of an Assignment.
5.5.The Client warrants to PRS that it will comply with its statutory obligations to provide a status disagreement process and that it will use its best endeavours to resolve status determination disagreements equitably.
5.6.The Client undertakes and agrees to provide any information reasonably requested at any time by PRS promptly in order to assist PRS to comply with Off-Payroll and in particular:
5.6.1.to comply with its statutory obligation to, upon request by PRS, confirm its size under Off-Payroll; and
5.6.2.to notify PRS where the Client is (or becomes) based wholly overseas as defined under Off-Payroll.
5.7.PRS shall indemnify and keep indemnified, the Client against any Losses suffered or incurred by the Client by reason of any proceedings, claims or demands by any third party (including specifically, but without limitation, HMRC and any successor, equivalent or related body) pursuant to any breach by PRS of the Off-Payroll legislation and/or any of the provisions of Chapter 8 or 10 and/or section 688A of the Income Tax (Earnings and Pensions) Act 2003 and/or any supporting or consequential secondary legislation relating thereto.
6.1.At the end of each week of an Assignment (or at the end of the Assignment where it is for a period of 1 week or less) the Client shall either sign PRS' timesheet or, by using PRS’ online timesheet system, approve PRS' online timesheet, verifying the number of hours worked by the Temporary Worker during that week.
6.2.Signature of the timesheet or approval of the online timesheet (as applicable) by the Client is confirmation of the number of hours worked by the Temporary Worker and that the Client is satisfied with the quality of the work performed. If the Client is unable to sign a timesheet produced for authentication by the Temporary Worker or approve an online timesheet (as applicable) because the Client disputes the hours claimed, the Client shall inform PRS as soon as is reasonably practicable and shall co-operate fully and in a timely fashion with PRS to enable PRS to establish what hours, if any, were worked by the Temporary Worker. Failure to sign any timesheet or approve any online timesheet (as applicable) does not absolve the Client of its obligation to pay the Charges in respect of the hours worked.
6.3.The Client will ensure that all timesheet(s) are signed or approved (as applicable) promptly. If the Client has failed to approve an online timesheet after two email reminders from PRS, PRS shall be entitled to assume that the online timesheet is approved by the Client and shall pay the Temporary Worker and invoice the Client accordingly no later than the Wednesday morning following the week worked.
6.4.The Client shall not be entitled to decline to sign a timesheet or approve an online timesheet (as applicable) on the basis that it is dissatisfied with the work performed by the Temporary Worker. In the event that the Client is dissatisfied with the Temporary Worker the provisions of Clause 11.1 below shall apply.
7.1.The Client agrees to pay the Charges as notified to and agreed with the Client. The Charges are calculated according to the number of hours worked by the Temporary Worker (to the nearest quarter hour) and comprise the following:
7.1.1.the Temporary Worker's hourly rate of pay;
7.1.2.an amount equal to any paid holiday leave to which the Temporary Worker is entitled under the Working Time Regulations and, where applicable, the AWR and which is accrued during the course of an Assignment;
7.1.3.any other amounts to which the Temporary Worker is entitled under the AWR, where applicable;
7.1.4.employer's National Insurance contributions;
7.1.5.any travel, hotel or other expenses as may have been agreed with the Client or, if there is no such agreement, such expenses as are reasonable; and
7.1.6.PRS' commission, which is calculated as a percentage of the Temporary Worker's hourly rate.
7.2.PRS reserves the right to vary the Charges agreed with the Client, by giving written notice to the Client:
7.2.1.in order to comply with any additional liability imposed by statute or other legal requirement or entitlement, including but not limited to the AWR and/or Off-Payroll; and/or
7.2.2.if there is any variation in the Relevant Terms and Conditions.
7.3.The Charges are invoiced to the Client on a weekly basis and are payable within 7 days.
7.4.All invoices will be deemed to be accepted in full by Client unless Client notifies PRS in writing within five days of the amount Client disputes and the reason Client disputes that amount. In the event Client does so notify PRS that it wishes to dispute part of an invoice, Client agrees to pay the undisputed part of the invoice within the agreed payment terms and will co-operate fully with PRS in order to resolve the dispute as quickly as possible.
7.5.PRS reserves the right to charge interest on invoiced amounts overdue at the statutory rate as prescribed pursuant to Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 (and as may be calculated using the calculator on the website: www.payontime.co.uk) from the due date until the date payment is received in cleared funds and to charge compensation and further recovery costs in accordance with the Late Payment of Commercial Debts Regulations 2013.
7.6.In addition to the Charges, the Client will pay PRS an amount equal to any bonus that the Client awards to the Temporary Worker in accordance with Clause 3.5 immediately following any such award and PRS will pay any such bonus to the Temporary Worker. For the avoidance of doubt, the Client will also pay any employer's National Insurance Contributions and PRS' commission on the bonus (calculated using the same percentage rate as that used under Clause 7.1.6) in addition to any bonus payable to the Temporary Worker.
7.7.If (as indicated in the relevant Assignment Details Form) the Temporary Worker is an Agency Worker and the Temporary Worker is pregnant or becomes pregnant at any time during the term of these Terms:
7.7.1.the Client will pay PRS the Charges for any time the Temporary Worker takes off from the performance of the Assignment in order to travel to and attend any ante-natal medical appointments and/or ante-natal classes at any time during the term of these Terms; and
7.7.2.if there is likely to be a risk to the health and safety of the Temporary Worker, the Client will carry out a workplace risk assessment and, if the Client identifies any such risk, make a reasonable adjustment or adjustments to remove such risk(s); if it is not possible or reasonable for the Client to make an adjustment or adjustments and remove such risk(s), the Client will inform PRS and the Client will use its reasonable endeavours to find suitable alternative work for the Temporary Worker and inform PRS of any such suitable alternative work so that PRS can offer it to the Temporary Worker. If the Client is not able to find suitable alternative work for the Temporary Worker, PRS will, if available, offer suitable alternative work to the Temporary Worker; if no suitable alternative work is available, the Client will pay PRS the Charges for the period from the date the Temporary Worker ceases to perform the Assignment for health and safety reasons to the end date of the Assignment.
7.8.In the event notification in accordance with 5.4 is provided to PRS after the commencement of the Assignment or in the event of information provided in accordance with clauses 3.1 and 5.3 is incorrect or incomplete, the Client agrees and accepts that PRS is entitled to vary its Charges to the Client and nature of services in order to comply with Off-Payroll and has the right to terminate the relevant Assignment with immediate effect pursuant to Clause 12.4.
7.9.Client acknowledges and agrees that PRS may, upon notice, increase the Charges set out in under clause 7.1 in order to comply with the AWR or with Off-Payroll.
7.10.VAT is payable at the applicable rate on the entirety of the Charges and all sums payable under Clauses 7.6 and 7.7.
7.11.PRS reserves the right to charge compensation and interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment.
7.12.No refunds are payable in respect of the Charges of PRS.
7.13.The Client's obligations under this Clause 7 shall be performed without any right of the Client to invoke set-off, deductions, withholdings or other similar rights.
8.PAYMENT OF THE TEMPORARY WORKER
8.1.Where PRS directly engages the Temporary Worker, PRS assumes responsibility for paying the Temporary Worker and, where appropriate, for the deduction and payment of National Insurance Contributions and PAYE Income Tax applicable to the Temporary Worker pursuant to sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003.
8.2.If PRS engages the Temporary Worker via a company or other third party entity, PRS assumes responsibility for paying that entity.
9.1.The Client shall be liable to pay a Transfer Fee if the Client Engages a Temporary Worker Introduced by PRS other than via PRS or introduces the Temporary Worker to a third party and such introduction results in an Engagement of the Temporary Worker by the third party other than via PRS and:
9.1.1.where the Temporary Worker has been supplied by PRS, such Engagement takes place during the Assignment or within the Relevant Period; or
9.1.2.where the Temporary Worker has not been supplied, such Engagement takes place within 6 months from the date of the Introduction to the Client. The Transfer Fee will be calculated in accordance with Schedule 2.
9.2.If the Client wishes to Engage the Temporary Worker other than via PRS without liability to pay a Transfer Fee, the Client may, on giving one month's written notice to PRS, engage the Temporary Worker for the Period of Extended Hire specified in Schedule 2.
9.3.During such Period of Extended Hire PRS shall supply the Temporary Worker on the same terms on which s/he has or would have been supplied during the Assignment and in any case on terms no less favourable than those terms which applied immediately before PRS received the notice in Clause 9.2; and the Client shall continue to pay the Charges set out in Clause 7. If PRS is unable to supply the Temporary Worker for any reason outside its control for the whole or any part of the Period of Extended Hire; or the Client does not wish to hire the Temporary Worker on the same terms as the Assignment; but the Temporary Worker is Engaged by the Client, the Client shall pay the Transfer Fee, reduced pro-rata to reflect any Charges paid by the Client during any part of the Period of Extended Hire worked by the Temporary Worker before being Engaged by the Client. If the Client fails to give notice of its intention to Engage the Temporary Worker other than via PRS before such Engagement commences, the parties agree that the Transfer Fee shall be due in full.
9.4.Where prior to the commencement of the Client's Engagement other than via PRS PRS and the Client agree that such Engagement will be on the basis of a fixed term of less than 12 months, PRS may, in its absolute discretion, reduce the Transfer Fee as calculated in accordance with Schedule 2 pro-rata. Such reduction is subject to the Client Engaging the Temporary Worker for the agreed fixed term. Should the Client extend the Temporary Worker's Engagement or re-Engage the Temporary Worker within 12 months from the commencement of the initial Engagement PRS reserves the right to recover the balance of the Transfer Fee.
9.5.No refund of the Transfer Fee will be paid in the event that the Engagement of the Temporary Worker other than via PRS by the Client or by a third party to which the Client introduces the Temporary Worker terminates or terminates before the end of the fixed term referred to in Clause 9.4.
9.6.VAT is payable in addition to any Transfer Fee due.
10.SUITABILITY CHECKS AND INFORMATION TO BE PROVIDED IN SPECIAL SITUATIONS
10.1.1.the Temporary Worker is required by law, or any professional body to have any qualifications or authorisations to work on the Assignment, PRS will take all reasonably practicable steps to obtain and offer to provide to the Client copies of any relevant qualifications or authorisations of the Temporary Worker; and
10.1.2.in addition, where the Assignment involves working with, caring for or attending one or more Vulnerable Persons, PRS will take all reasonably practicable steps to obtain and offer to provide copies to the Client of two references from persons who are not relatives of the Temporary Worker and who have agreed that the references they provide may be disclosed to the Client; and such other reasonably practicable steps as are required to confirm that the Temporary Worker is suitable for the Assignment. If PRS has taken all reasonably practicable steps to obtain the information above and has been unable to do so fully it shall inform the Client of the steps it has taken to obtain this information in any event.
10.2.The Client shall advise PRS at the time of instructing PRS to supply a Temporary Worker whether during the course of the Assignment, the Temporary Worker will be required to work with, care for or attend one or more Vulnerable Persons or engage in activity or otherwise be working in a position covered by the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 as applicable.
10.3.The Client shall assist PRS by providing any information required to allow PRS to comply with its statutory obligations under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 as applicable and to allow PRS to select a suitable Temporary Worker for the Assignment.
10.4.In particular in the event that the Client removes a Temporary Worker from an Assignment in circumstances which would require PRS to provide information to the Independent Safeguarding Authority (or the equivalent authority) under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007, the Client will provide sufficient information to PRS to allow it to discharge its statutory obligations.
11.UNSUITABILITY OF THE TEMPORARY WORKER
11.1.If the Client reasonably considers that the services of the Temporary Worker are unsatisfactory, the Client may terminate the Assignment either by instructing the Temporary Worker to leave the Assignment immediately, or by directing PRS to remove the Temporary Worker. PRS may, in its absolute discretion, in such circumstances, reduce or cancel the Charges for the time worked by that Temporary Worker, provided that the Client has notified PRS immediately that it has asked the Temporary Worker to leave the Assignment or the Assignment terminates:
11.1.1.within 4 hours of the Temporary Worker commencing the Assignment where the Assignment is for more than 7 hours; or
11.1.2.within 2 hours for Assignments of 7 hours or less; and provided that notification of the unsuitability of the Temporary Worker is confirmed in writing to PRS within 48 hours of the termination of the Assignment.
10.2PRS shall notify the Client immediately if it receives or otherwise obtains information which gives PRS reasonable grounds to believe that any Temporary Worker supplied to the Client is unsuitable for the Assignment and shall be entitled to terminate the Assignment forthwith without prior notice and without liability. Notwithstanding any such termination, the Client shall remain liable for all Charges incurred prior to the termination of the Assignment.
10.3The Client shall notify PRS immediately and without delay and in any event within 2 hours if the Temporary Worker fails to attend work or has notified the Client that s/he is unable to attend work for any reason.
12.TERMINATION OF THE ASSIGNMENT
12.1.The Client or PRS may terminate an Assignment at any time without liability (except in the case of termination by the Client, who shall be liable for any Charges due under Clause 7 above) by giving the other party 24 hours' written notice.
12.2.PRS may end any Assignment immediately by giving the Client notice in writing if the Client is in material breach of these Terms.
12.3.These Terms may be terminated by either party by giving to the other immediate notice in the event that either PRS or the Client goes into liquidation, becomes bankrupt or enters into an arrangement with creditors or has a receiver or administrator appointed or where PRS has reasonable grounds to believe the Client will not pay PRS’s invoices in accordance with Clause 7 above.
12.4.PRS may, in its absolute discretion and at any time, terminate an Assignment upon immediate notice where in the opinion of PRS, the Temporary Worker is no longer suitable to provide the services, including suitability given Off-Payroll status of the services.
13.1.For the purposes of this clause 13:
13.1.1."Data Subject" means as set out in, and will be interpreted in accordance with the Data Protection Laws. For the avoidance of doubt, Data Subject includes Temporary Worker.
13.1.2.“Data Controller” means "controller" in accordance with the General Data Protection Regulation (EU) 2016;
13.1.3.“Personal Data” means as set out in, and will be interpreted in accordance with Data Protection Laws; and
13.1.4.“Personal Data Breach” means the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed in connection with these Terms or which relates to any Temporary Worker;
13.1.5.“Process” means as set out in, and will be interpreted in accordance with Data Protection Laws and “Processed” and “Processing” will be construed accordingly;
13.2.The parties hereto acknowledge that PRS is a Data Controller in respect of the Personal Data of Temporary Workers and provides such Personal Data to Client in accordance with the Data Protection Laws for the purposes anticipated by these Terms.
13.3.The parties hereto acknowledge that Client is a Data Controller but the parties hereto are not Joint Controllers (as defined within Data Protection Laws) save where a specific agreement is made to that effect between the parties hereto.
13.4.The parties hereto warrant to each other that any Personal Data relating to a Data Subject, whether provided by Client, PRS or Temporary Worker, will be used, Processed and recorded by the receiving party in accordance with Data Protection Laws.
13.5.The parties hereto will take appropriate technical and organisational measures to adequately protect all Personal Data against accidental loss, destruction or damage, alteration or disclosure.
13.6.Client will -
13.6.1.comply with the instruction of PRS as regards the transfer/sharing of data between the parties hereto. If Client requires Personal Data not already in its control to be provided by PRS, Client will set out their legal basis for the request of such data and accept that PRS may refuse to share/transfer such Personal Data where, in the reasonable opinion of PRS, it does not comply with its obligations in accordance with Data Protection Laws;
13.6.2.not cause PRS to breach any of its obligations under the Data Protection Laws.
13.7.In the event Client becomes aware of an actual or any reasonably suspected Personal Data Breach, it will immediately notify PRS and will provide PRS with a description of the Personal Data Breach, the categories of data that was the subject of the Personal Data Breach and the identity of each Data Subject affected and any other information PRS reasonably requests relating to the Personal Data Breach.
13.8.In the event of a Personal Data Breach, Client will promptly (at its own expense) provide such information, assistance and cooperation and do such things as PRS may request to -
13.8.1.investigate and defend any claim or regulatory investigation;
13.8.2.mitigate, remedy and/or rectify such breach; and
13.8.3.prevent future breaches,
and will provide PRS with details in writing of all such steps taken.
13.9.Client will not release or publish any filing, communication, notice, press release or report concerning any Personal Data Breach without the prior written approval of PRS.
13.10.Client agrees it will only Process Personal Data of Temporary Workers for the agreed purpose of provision of Services pursuant to these Terms.
13.11.Client will provide evidence of compliance with clause 13 upon request from PRS.
14.1.All information relating to a Temporary Worker is confidential and subject to the Data Protection Laws and is provided solely for the purpose of providing work-finding services to the Client. Such information must not be used for any other purpose nor divulged to any third party and the Client undertakes to abide by the provisions of the Data Protection Laws in receiving and processing the data at all times.
14.2.PRS undertakes to keep confidential all Relevant Terms and Conditions that the Client discloses to PRS and not to use such information except for the purposes of compliance with the AWR and/or Off-Payroll (including, for the avoidance of doubt and without limitation, when dealing with any request for information or complaint made by or on behalf of any Temporary Worker or any AWR Claim).
14.3.Information relating to PRS' business which is capable of being confidential must be kept confidential and not divulged to any third party, except information which is in the public domain.
15.INTELLECTUAL PROPERTY RIGHTS
15.1.All copyright, trademarks, patents and other intellectual property rights deriving from the Assignment shall belong to the Client. Accordingly PRS shall use its reasonable endeavours to ensure that the Temporary Worker shall execute all such documents and do all such acts in order to give effect to the Client's rights pursuant to this Clause.
16.1.Whilst reasonable efforts are made by PRS to ensure reasonable standards of skill, integrity and reliability from Temporary Workers and to provide the same in accordance with the Assignment details as provided by the Client, no liability is accepted by PRS for any loss, expense, damage or delay arising from any failure to provide any Temporary Worker for all or part of the Assignment or from the negligence, dishonesty, misconduct or lack of skill of the Temporary Worker or if the Temporary Worker terminates the Assignment for any reason. For the avoidance of doubt, PRS does not exclude 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.
16.2.Temporary Workers supplied by PRS pursuant to these Terms are engaged under contracts for services. They are not the employees of PRS. The Client agrees to be responsible for all acts, errors or omissions of the Temporary Worker, whether wilful, negligent or otherwise as though the Temporary Worker was on the payroll of the Client.
16.3.The Client shall advise PRS of any special health and safety matters about which PRS is required to inform the Temporary Worker and about any requirements imposed by law or by any professional body, which must be satisfied if the Temporary Worker is to fill the Assignment.
16.4.The Client will also comply in all respects with all statutory provisions as are in force from time to time including, for the avoidance of doubt, but not limited to the Working Time Regulations, Health and Safety At Work etc. Act 1974 (as amended from time to time), the Management of Health and Safety at Work Regulations 1999 (as amended from time to time), by-laws, codes of practice and legal requirements to which the Client is ordinarily subject in respect of the Client's own staff (excluding the matters specifically mentioned in Clause 8 above), including in particular the provision of adequate Employer's and Public Liability Insurance cover for the Temporary Worker during all Assignments.
16.5.The Client undertakes not to request the supply of a Temporary Worker to perform the duties normally performed by a worker who is taking part in official industrial action or duties normally performed by a worker who has been transferred by the Client to perform the duties of a person on strike or taking official industrial action.
16.6.The Client shall indemnify and keep indemnified PRS against any Losses incurred directly or indirectly by PRS arising out of any Assignment or arising out of any non-compliance with, and/or as a result of any breach of, these Terms by the Client or any of its employees, agents or subcontractors or any breach by the Client or any of its employees, agents or subcontractors of any applicable statutory provisions.
16.7.The Client shall inform PRS in writing of any AWR Claim which comes to the notice of the Client 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 Client.
16.8.If the Temporary Worker brings, or threatens to bring, any AWR Claim, the Client undertakes to take such action and give such information and assistance as PRS may request, and within any timeframe requested by PRS and at the Client's own cost, to avoid, dispute, resist, mitigate, compromise or defend any such AWR Claim and to appeal against any judgment given in respect thereof.
16.9.Save as required by law, the sole aggregate liability of PRS to the Client arising in connection with these Terms will be limited to £10,000.
17.1.At all times during the term of its contract with the Client, PRS shall maintain (and shall procure that any third parties involved in the provision of Services to the Client shall maintain) adequate and fully paid up insurance policies with reputable and substantial insurance providers up to at least the limits specified below and shall provide the Client on request, with copies of such insurance policies. The minimum insurance requirements are:
17.1.1.professional indemnity insurance for a sum of not less than £1,000,000 (one million pounds sterling); and
17.1.2.public liability insurance for a sum of not less than £2,000,000 (two million pounds sterling); and
17.1.3.employer’s liability insurance where required by statute and at the statutory level; and
17.1.4.tax investigation for a sum of not less than £100,000 (one hundred thousand pounds sterling) and tax liability insurance for a sum of not less than £100,000 (one hundred thousand pounds sterling) including cover for any claims pursuant to Off Payroll; and
17.1.5.any other policies as notified by Client from time to time.
17.2.PRS shall maintain the professional indemnity insurance policy in force for at least 6 (six) years following the expiry of its contractual relationship with the Client.
18.1.Subject to Clause 7.2, no variation to these Terms or any Schedule, shall be effective unless it is in writing and signed by both parties.
18.2.No provision within these Terms or any Schedule can or shall be construed as the grounds of any partnership or joint venture between PRS and the Client.
18.3.PRS is not liable for any delay or failure in performance of its obligations to Client where this arises from matters outside its reasonable control or as a result of a failure by the Client to provide adequate information or instructions.
18.4.No third party rights are intended to be conferred or created by these Terms and the Contracts (Rights of Third Parties) Act 1999 shall not apply.
18.5.All notices or other communication given to a party under or in connection with these Terms shall be in writing and shall be deemed to have been duly given when delivered by hand, posted by pre-paid first class post or sent by email to the intended recipient to such email address as the parties may have notified each other for this purpose. A notice or other communication shall be deemed to have been received: if sent by post, at 9.00am on the second business day following posting; if sent by email, at the time of transmission.
18.6.Failure or neglect by either party at any time to enforce any provision of these Terms shall not be a waiver of that party’s rights and shall not prejudice its rights to take action in respect of the same or any later breach.
18.7.These Terms are personal to the Client and it shall not be entitled to assign or sub-contract its obligations or rights under these Terms to any third party without the prior written consent of PRS, not to be unreasonably withheld. PRS shall be entitled to assign or sub-contract its obligations or rights under these Terms to any third party without the prior written consent of the Client.
18.8.If any provision of these Terms is held by any court or other competent authority to be wholly or partially void, invalid, or unenforceable, such provision shall be deemed deleted from the body of these Terms which shall continue to be valid and enforceable to the fullest extent permitted by Law).
18.9.Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to these Terms.
18.10.Each party shall pay its own costs and expenses incurred in connection with these Terms.
18.11.The parties acknowledge that AWR, Conduct Regulations and Off-Payroll are not inter dependent and their applicability to any Assignment does not determine supervision, direction or control by Client.
18.12.These Terms shall be governed by and construed in accordance with the laws of England and Wales and all disputes, claims or proceedings between the parties relating to the validity, construction or performance of these Terms shall be subject to the exclusive jurisdiction of the courts of England and Wales.
"Comparable Employee", "Qualifying Period" and "Temporary Work Agency"
"Comparable Employee" means as defined in Regulation 5(4) of the AWR being an employee of the Client who:
(a)works for and under the supervision of the Client and is engaged in the same or broadly similar work as the Temporary Worker having regard, where relevant, to whether the employee and the Temporary Worker have a similar level of qualification and skill; and
(b)works or is based at the same establishment as the Temporary Worker or, where there is no comparable employee working or based at that establishment who satisfies the requirements of (a) above, works or is based at a different establishment and satisfies those requirements.
For the purpose of the definition of "Qualifying Period" in Clause 1.1 of these Terms, when calculating whether any weeks completed with the Client count as continuous towards the Qualifying Period, where:
(a)the Temporary Worker has started working during an assignment and there is a break, either between assignments or during an assignment, when the Temporary Worker is not working;
(b)the break is:
(i)for any reason and not more than six Calendar Weeks;
(ii)wholly due to the fact that the Temporary Worker is incapable of working in consequence of sickness or injury and the break is 28 Calendar Weeks or less; paragraph (iii) does not apply; and, if required to do so by PRS, the Temporary Worker has provided such written medical evidence as may reasonably be required;
(iii)related to pregnancy, childbirth or maternity and is at a time in a protected period, being a period beginning at the start of the pregnancy and ending at the end of the 26 weeks beginning with childbirth (being the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy) or, if earlier, when the Temporary Worker returns to work;
(iv)wholly for the purpose of taking time off or leave, whether statutory or contractual, to which the Temporary Worker is otherwise entitled which is:
i.ordinary, compulsory or additional maternity leave;
ii.ordinary or additional adoption leave;
iii.ordinary or additional paternity leave;
iv.time off or other leave not listed in paragraphs (iv)i, ii, or iii above; or v. for more than one of the reasons listed in paragraphs (iv)i, ii, iii to iv above;
(v)wholly due to the fact that the Temporary Worker is required to attend at any place in pursuance to being summoned for service as a juror and the break is 28 Calendar Weeks or less;
(vi)wholly due to a temporary cessation in the Client's requirement for any worker to be present at the establishment and work in a particular role for a pre-determined period of time according to the established custom and practices of the Client;
(vii)wholly due to a strike, lock-out or other industrial action at the Client's establishment; or
(viii)wholly due to more than one of the reasons listed in paragraphs (ii), (iii), (iv), (v), (vi) or (vii); and
(c)the Temporary Worker returns to work in the same role with the Client, any weeks during which the Temporary Worker worked for the Client before the break shall be carried forward and treated as counting towards the Qualifying Period with any weeks during which the Temporary Worker works for the Client after the break. In addition, when calculating the number of weeks during which the Temporary Worker has worked, where the Temporary Worker has started working in a role during an Assignment and is unable to continue working for a reason described in paragraph (b)(iii) or (b)(iv)i., ii, or iii., for the period that is covered by one or more such reasons, the Agency Worker shall be deemed to be working in that role with the Client for the original intended duration or likely duration of the relevant Assignment, whichever is the longer. For the avoidance of doubt, time spent by the Temporary Worker working during an assignment before 1 October 2011 does not count for the purposes of the definition of "Qualifying Period".
"Temporary Work Agency" means as defined in Regulation 4 of the AWR being a person engaged in the economic activity, public or private, whether or not operating for profit, and whether or not carrying on such activity in conjunction with others, of:
(a)supplying individuals to work temporarily for and under the supervision and direction of Clients; or
(b)paying for, or receiving or forwarding payment for, the services of individuals who are supplied to work temporarily for and under the supervision and direction of Clients. Notwithstanding paragraph (b) of this definition a person is not a Temporary Work Agency if the person is engaged in the economic activity of paying for, or receiving or forwarding payments for, the services of individuals regardless of whether the individuals are supplied to work for Clients. For the purpose of this definition, a "Client" means a person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person.
(a)The Transfer Fee referred to in Clause 9 shall be calculated as follows: 15% of the Remuneration payable to the Temporary Worker during the first 12 months of the Engagement.
(b)The Period of Extended Hire, referred to in Clause 9, before the Client Engages a Temporary Worker shall be: 40 weeks.