DEFINITIONS
1.1 In these Terms the following definitions apply:
"Agency Worker" means an agency worker as defined under Regulation 3 of the AWR;
"Assignment" means assignment services to be performed by the Temporary Worker for
the Hirer for a period of time during which the Temporary Worker is supplied by the
Employment Business to work temporarily for the Hirer;
"Assignment Details Form" means written 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 Temporary 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 hourly charges of the Employment Business calculated in accordance
with clause 6.1 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;
"Conduct Regulations" means the Conduct of Employment Agencies and Employment
Businesses Regulations 2003;
"Confidential Information" means any and all confidential commercial, financial,
marketing, technical or other information or data of whatever nature relating to the Hirer or
Employment Business 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 Hirer or the
Employment Business or by a third party on behalf of the Hirer 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
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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" unless and until the GDPR is no longer directly applicable in the
UK, the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and any national
implementing laws, regulations and secondary legislation, as amended or updated from time
to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection
Act 1998;
"Employment Business" means the limited company, limited liability partnership or other
entity the name and other details of which are set out in the relevant Assignment Details Form,
being in each case an entity which is a member of Phoenix Resourcing Services (Holdings)
Limited's (a company registered in England and Wales with company number: 04401459) group;
"Engagement" means the engagement, employment or use of the Temporary Worker by
the Hirer or any third party to whom the Temporary Worker has been introduced by the Hirer,
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 Hirer 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 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
Temporary 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 Temporary Worker; or (ii) the Hirer's interview of the Temporary 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 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;
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"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;
"Period of Extended Hire" means any additional period that the Hirer 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;
"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 Hirer to work temporarily for and under the supervision and direction of the relevant
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 Temporary Worker worked for the
Hirer having been supplied by the Employment Business; and (b) the period of 14 weeks
commencing on the first day on which the Temporary 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: (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
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 Temporary Worker for services provided to or on behalf of the
Hirer 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 the Employment Business' fee;
"Temporary Work Agency" means as defined in Schedule 1 to these Terms;
"Temporary Worker" means the individual who is Introduced by the Employment Business to
provide services to the Hirer;
"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;
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"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.
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 THE CONTRACT
2.1 These Terms constitute the contract between the Employment Business and the Hirer for
the supply of the Temporary Worker's services by the Employment Business to the Hirer
and are deemed to be accepted by the Hirer 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 Hirer about a Temporary Worker to any third party
following an Introduction, whichever first occurs.
2.2 These Terms contain the entire agreement between the parties and unless otherwise agreed
in writing by a director of the Employment Business, these Terms prevail over any terms
of business or purchase conditions (or similar) put forward by the Hirer.
2.3 Subject to clause 6.2, no variation or alteration to these Terms shall be valid unless the details of
such variation are agreed between a director of the Employment Business and the Hirer and are
set out in writing and a copy of the varied Terms is given to the Hirer stating the date on or after
which such varied Terms shall apply.
2.4 The Employment Business shall act as an employment business (as defined in Section 13(3) of
the Employment Agencies Act 1973) when Introducing Temporary Workers for Assignments
with the Hirer.
3 HIRER OBLIGATIONS
3.1 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:
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;
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3.1.3 the experience, training, qualifications and any authorisation which the Hirer considers
necessary or which are required by law or any professional body for the
Temporary Worker to possess in order to work in the position;
3.1.4 any risks to health or safety known to the Hirer and what steps the Hirer has taken to
prevent or control such risks;
3.1.5 the date the Hirer requires the Temporary Worker to commence the Assignment;
3.1.6 the duration or likely duration of the Assignment.
3.2 The Hirer will assist the Employment Business in complying with the Employment Business'
duties under the Working Time Regulations by supplying any relevant information about the
Assignment requested by the Employment Business and the Hirer will not do anything to cause
the Employment Business to be in breach of its obligations under these Regulations. If the Hirer
requires the services of an Temporary Worker for more than 48 hours in any week during the
course of an Assignment, the Hirer must notify the Employment Business 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 Hirer requires the Temporary
Worker to work in excess of 48 hours.
3.3 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.
3.4 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' request:
3.5
3.5.1 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 the Employment Business 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
Hirer 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;
3.5.2 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 Hirer 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 Hirer via any third party
during the relevant Assignment, to provide the Employment Business 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
the Employment Business;
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3.5.3 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 the Employment Business 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 Hirer;
(b) completed at least one assignment with the Hirer and one or more earlier
assignments with any member of the Hirer's Group; and/or
(c) 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;
3.5.4 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 the Employment Business 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 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;
(b) 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
3.5.5 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 the Employment Business with
written details of its pay and benefits structures and appraisal processes and any
variations of the same.
3.6 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 Hirer will:
3.6.1 integrate the Temporary Worker into its relevant performance appraisal system;
3.6.2 assess the Temporary Worker's iperformance;
3.6.3 provide the Employment Business 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
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3.6.4 provide the Employment Business with all other assistance the Employment Business
may request in connection with the assessment of the Temporary
Worker's performance for the purpose of awarding any bonus.
3.7 The Hirer will comply with all the Employment Business' requests for information and any other
requirements to enable the Employment Business to comply with the AWR.
3.8 The Hirer warrants that:
3.8.1 all information and documentation supplied to the Employment Business in accordance
with clauses 3.4, 3.5 and 3.6 is complete, accurate and up-to-date; and
3.8.2 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 3.4, 3.5 and 3.6;
3.9 Without prejudice to clauses 14.7 and 14.8, the Hirer shall inform the Employment Business in
writing of any:
3.9.1 oral or written complaint the Temporary Worker makes to the Hirer which is or may be a
complaint connected with rights under the AWR; and
3.9.2 written request for information relating to the Relevant Terms and Conditions that the
Hirer 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 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.
3.10 The Hirer 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.
3.11 In order to enable the Employment Business to source a suitable Temporary Worker the
Employment Business is authorised by the Hirer to advertise the positions the Hirer has
instructed the Employment Business to fill.
4 INFORMATION TO BE PROVIDED BY THE EMPLOYMENT BUSINESS TO THE HIRER
4.1 When Introducing a Temporary Worker to the Hirer the Employment Business shall inform the
Hirer:
4.1.1 of the identity of the Temporary Worker;
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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; and
4.1.4 the Charges.
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 Hirer, unless
the Hirer requests that the information be resubmitted.
5 TIMESHEETS
5.1 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 Hirer shall either sign the Employment Business' timesheet or, by
using the Hirer Employment Business' online timesheet system, approve the Employment
Business' online timesheet, verifying the number of hours worked by the Temporary Worker
during that week.
5.2 Signature of the timesheet or approval of the online timesheet (as applicable) by the Hirer is
confirmation of the number of hours worked by the Temporary Worker and that the Hirer is
satisfied with the quality of the work performed. If the Hirer is unable to sign a timesheet
produced for authentication by the Temporary Worker or approve an online timesheet (as
applicable) because the Hirer disputes the hours claimed, the Hirer shall inform the Employment
Business as soon as is reasonably practicable and shall co-operate fully and in a timely fashion
with the Employment Business to enable the Employment Business 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 Hirer of its obligation to pay the
Charges in respect of the hours worked.
5.3 The Hirer will ensure that all timesheet(s) are signed or approved (as applicable) promptly. If
the Hirer has failed to approve an online timesheet after two email reminders from the
Employment Business, the Employment Business shall be entitled to assume that the online
timesheet is approved by the Hirer and shall pay the Temporary Worker and invoice the Hirer
accordingly no later than the Wednesday morning following the week worked.
5.4 The Hirer 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 Hirer is dissatisfied with the Temporary Worker the provisions of clause 10.1
below shall apply.
6 CHARGES
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6.1 The Hirer agrees to pay the Charges as notified to and agreed with the Hirer. The Charges
are calculated according to the number of hours worked by the Temporary Worker (to the
nearest quarter hour) and comprise the following:
6.1.1 the Temporary Worker's hourly rate of pay;
6.1.2 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;
6.1.3 any other amounts to which the Temporary Worker is entitled under the AWR, where
applicable;
6.1.4 employer's National Insurance contributions;
6.1.5 any travel, hotel or other expenses as may have been agreed with the Hirer or, if there
is no such agreement, such expenses as are reasonable; and
6.1.6 the Employment Business' commission, which is calculated as a percentage of the
Temporary Worker's hourly rate.
6.2 The Employment Business reserves the right to vary the Charges agreed with the Hirer, by
giving written notice to the Hirer:
6.2.1 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
6.2.2 if there is any variation in the Relevant Terms and Conditions.
6.3 The Charges are invoiced to the Hirer on a weekly basis and are payable within 7 days.
6.4 In addition to the Charges, the Hirer will pay the Employment Business an amount equal to any
bonus that the Hirer awards to the Temporary Worker in accordance with clause 3.5 immediately
following any such award and the Employment Business will pay any such bonus to the
Temporary Worker. For the avoidance of doubt, the Hirer will also pay any employer's National
Insurance Contributions and the Employment Business' commission on the bonus (calculated
using the same percentage rate as that used under clause 6.1.6) in addition to any bonus
payable to the Temporary Worker.
6.5 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:
6.5.1 the Hirer will pay the Employment Business 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
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6.5.2 if there is likely to be a risk to the health and safety of the Temporary Worker, the Hirer
will carry out a workplace risk assessment and, if the Hirer identifies any such risk,
make a reasonable adjustment or adjustments to remove such risk(s); if it is not
possible or reasonable for the Hirer to make an adjustment or adjustments and remove
such risk(s), the Hirer will inform the Employment Business and the Hirer will use its
reasonable endeavours to find suitable alternative work for the Temporary Worker and
inform the Employment Business of any such suitable alternative work so that the
Employment Business can offer it to the Temporary Worker. If the Hirer is not able to
find suitable alternative work for the Temporary Worker, the Employment Business will,
if available, offer suitable alternative work to the Temporary Worker; if no suitable
alternative work is available, the Hirer will pay the Employment Business 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.
6.6 VAT is payable at the applicable rate on the entirety of the Charges and all sums payable under
clauses 6.4 and 6.5.
6.7 The Employment Business 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.
6.8 No refunds are payable in respect of the Charges of the Employment Business.
6.9 The Hirer's obligations under this clause 6 shall be performed without any right of the Hirer to
invoke set-off, deductions, withholdings or other similar rights.
7 PAYMENT OF THE TEMPORARY WORKER
Where the Employment Business directly engages the Temporary Worker, the Employment
Business 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 If the Employment Business engages the Temporary Worker
via a company or other third party entity, the Employment Business assumes responsibility for
paying that entity.
8 TRANSFER FEES
8.1 The Hirer shall be liable to pay a Transfer Fee if the Hirer Engages a Temporary Worker
Introduced by the Employment Business other than via the Employment Business 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 the Employment Business and:
8.1.1 where the Temporary Worker has been supplied by the Employment Business, such
Engagement takes place during the Assignment or within the Relevant Period; or
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8.1.2 where the Temporary Worker has not been supplied, such Engagement takes
place within 6 months from the date of the Introduction to the Hirer. The Transfer Fee
will be calculated in accordance with Schedule 2.
8.2 If the Hirer wishes to Engage the Temporary Worker other than via the Employment
Business without liability to pay a Transfer Fee, the Hirer may, on giving one month's written
notice to the Employment Business, engage the Temporary Worker for the Period of Extended
Hire specified in Schedule 2.
8.3 During such Period of Extended Hire the Employment Business 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 the Employment Business received the notice in clause 8.2; and the Hirer
shall continue to pay the Charges set out in clause 6. If the Employment Business 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 Hirer does not wish to hire the Temporary Worker on the same
terms as the Assignment; but the Temporary Worker is Engaged by the Hirer, the Hirer shall pay
the Transfer Fee, reduced pro-rata to reflect any Charges paid by the Hirer during any part of the
Period of Extended Hire worked by the Temporary Worker before being Engaged by the Hirer. If
the Hirer fails to give notice of its intention to Engage the Temporary Worker other than via the
Employment Business before such Engagement commences, the parties agree that the Transfer
Fee shall be due in full.
8.4 Where prior to the commencement of the Hirer's Engagement other than via the Employment
Business the Employment Business and the Hirer agree that such Engagement will be on the
basis of a fixed term of less than 12 months, the Employment Business may, in its absolute
discretion, reduce the Transfer Fee as calculated in accordance with Schedule 2 pro-rata. Such
reduction is subject to the Hirer Engaging the Temporary Worker for the agreed fixed term.
Should the Hirer extend the Temporary Worker's Engagement or re-Engage the Temporary
Worker within 12 months from the commencement of the initial Engagement the Employment
Business reserves the right to recover the balance of the Transfer Fee.
8.5 No refund of the Transfer Fee will be paid in the event that the Engagement of the Temporary
Worker other than via the Employment Business by the Hirer or by a third party to which the
Hirer introduces the Temporary Worker terminates or terminates before the end of the fixed term
referred to in clause 8.4.
8.6 VAT is payable in addition to any Transfer Fee due.
9 SUITABILITY CHECKS AND INFORMATION TO BE PROVIDED IN SPECIAL SITUATIONS
9.1 Where:
9.1.1 the Temporary Worker is required by law, or any professional body to have any
qualifications or authorisations to work on the Assignment, the Employment Business
will take all reasonably practicable steps to obtain and offer to provide to the Hirer
copies of any relevant qualifications or authorisations of the Temporary Worker; and
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9.1.2 in addition, where the Assignment involves working with, caring for or attending one or
more Vulnerable Persons, the Employment Business will take all reasonably
practicable steps to obtain and offer to provide copies to the Hirer 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 Hirer; and such other reasonably
practicable steps as are required to confirm that the Temporary Worker is suitable for
the Assignment. If the Employment Business has taken all reasonably practicable
steps to obtain the information above and has been unable to do so fully it shall inform
the Hirer of the steps it has taken to obtain this information in any event.
9.2 The Hirer shall advise the Employment Business at the time of instructing the Employment
Business 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.
9.3 The Hirer shall assist the Employment Business by providing any information required to
allow the Employment Business 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 the Employment Business to select a suitable Temporary
Worker for the Assignment.
9.4 In particular in the event that the Hirer removes a Temporary Worker from an Assignment in
circumstances which would require the Employment Business 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 Hirer
will provide sufficient information to the Employment Business to allow it to discharge its statutory
obligations.
10 UNSUITABILITY OF THE TEMPORARY WORKER
10.1 If the Hirer reasonably considers that the services of the Temporary Worker are unsatisfactory,
the Hirer may terminate the Assignment either by instructing the Temporary Worker to leave the
Assignment immediately, or by directing the Employment Business to remove the Temporary
Worker. The Employment Business may, in its absolute discretion, in such circumstances,
reduce or cancel the Charges for the time worked by that Temporary Worker, provided that the
Hirer has notified the Employment Business immediately that it has asked the Temporary Worker
to leave the Assignment or the Assignment terminates:
10.1.1 within 4 hours of the Temporary Worker commencing the Assignment where the
Assignment is for more than 7 hours; or
10.1.2 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 the
Employment Business within 48 hours of the termination of the Assignment.
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10.2 The Employment Business shall notify the Hirer immediately if it receives or otherwise obtains
information which gives the Employment Business reasonable grounds to believe that any
Temporary Worker supplied to the Hirer 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 Hirer shall remain liable for all Charges incurred prior to the termination of
the Assignment.
10.3 The Hirer shall notify the Employment Business immediately and without delay and in any
event within 2 hours if the Temporary Worker fails to attend work or has notified the Hirer that
s/he is unable to attend work for any reason.
11 TERMINATION OF THE ASSIGNMENT
The Hirer or the Employment Business may terminate an Assignment at any time without
liability (except in the case of termination by the Hirer, who shall be liable for any Charges
due under clause 6 above) by giving the other party 24 hours' written notice.
12A DATA PROTECTION
12A.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This
clause 12A is in addition to, and does not relieve, remove or replace, a party's obligations under
the Data Protection Laws.
12A.2 The parties acknowledge that for the purposes of the Data Protection Laws, the Employment
Business is the data controller and the Hirer is the data processor (where “Data Controller” and
“Data Processor” have the meanings as defined in the Data Protection Laws). Schedule 3 sets
out the scope, nature and purpose of processing by the Hirer, the duration of the processing and
the types of personal data (as defined in the Data Protection Laws) (“Personal Data”) and
categories of Data Subject.
12A.3 Without prejudice to the generality of clause 12A.1, the Employment Business will ensure that it
has all necessary appropriate consents and notices in place to enable lawful transfer of the
Personal Data to the Hirer for the duration and purposes of this agreement.
12A.4 Without prejudice to the generality of clause 12A.1, the Hirer shall, in relation to any Personal
Data processed by it in connection with this agreement:
12A.4.1 process that Personal Data only on the written instructions of the Employment Business
unless the Hirer is required by the laws of any member of the European Union or by the
laws of the European Union applicable to the Hirer to process Personal Data
(“Applicable Laws”). Where the Hirer is relying on laws of a member of the European
Union or European Union law as the basis for processing Personal Data, the Hirer shall
promptly notify the Employment Business of this before performing the processing
required by the Applicable Laws unless those Applicable Laws prohibit the Hirer from so
notifying the Employment Business;
12A.4.2 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, appropriate to the harm that might
result from the unauthorised or unlawful processing or accidental loss, destruction or
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damage and the nature of the data to be protected, having regard to the state of
technological development and the cost of implementing any measures (those
measures may include, where appropriate, pseudonymising and encrypting Personal
Data, ensuring confidentiality, integrity, availability and resilience of its systems and
services, ensuring that availability of and access to Personal Data can be restored in a
timely manner after an incident, and regularly assessing and evaluating the
effectiveness of the technical and organisational measures adopted by it);
12A.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged
to keep the Personal Data confidential; and
12A.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior
written consent of the Employment Business has been obtained and the following
conditions are fulfilled:
12A.4.4.1 the Employment Business or the Hirer has provided appropriate
safeguards in relation to the transfer;
12A.4.4.2 the data subject has enforceable rights and effective legal remedies;
12A.4.4.3 the Hirer complies with its obligations under the Data Protection
Legislation by providing an adequate level of protection to any Personal
Data that is transferred; and
12A.4.4.4 the Hirer complies with reasonable instructions notified to it in advance
by the Employment Business with respect to the processing of the
Personal Data;
12A.4.5 assist the Employment Business 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;
12A.4.6 notify the Employment Business without undue delay on becoming aware of a Personal
Data breach;
12A.4.7 at the written direction of the Employment Business, delete or return Personal Data and
copies thereof to the Employment Business on termination of the agreement unless
required by Applicable Law to store the Personal Data; and
12A.4.8 maintain complete and accurate records and information to demonstrate its compliance
with this clause 12A.
12A.5 the Employment Business does not consent to the Hirer appointing any third-party processor of
Personal Data under this agreement.
12A.6 The Hirer shall indemnify the Employment Business against all claims, demands, actions, costs,
expenses, losses and damages (including without limitation any fines or penalties imposed by any
regulator whether in the UK, European Economic Area or otherwise) incurred by, awarded against or
agreed to be paid by the Employment Business arising from any breach by the Hirer of its obligations in
this clause 12A.
12A.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 12A by replacing it
with any applicable controller to processor standard clauses or similar terms forming party of an
applicable certification scheme (which shall apply when replaced by attachment to this agreement).
12 CONFIDENTIALITY
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12.1 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
Hirer. Such information must not be used for any other purpose nor divulged to any third party
and the Hirer undertakes to abide by the provisions of the Data Protection Laws in receiving
and processing the data at all times.
12.2 The Employment Business undertakes to keep confidential all Relevant Terms and Conditions
that the Hirer discloses to the Employment Business and not to use such information except for
the purposes of compliance with the AWR (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).
12.3 Information relating to the Employment Business' 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.
13 INTELLECTUAL PROPERTY RIGHTS
All copyright, trademarks, patents and other intellectual property rights deriving from
the Assignment shall belong to the Hirer. Accordingly the Employment Business 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 Hirer's rights pursuant to this clause.
14 LIABILITY
14.1 Whilst reasonable efforts are made by the Employment Business to give satisfaction to the Hirer
by ensuring reasonable standards of skill, integrity and reliability from the Temporary Worker and
to provide the same in accordance with the Assignment details as provided by the Hirer, no
liability is accepted by the Employment Business 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, the Employment
Business 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.
14.2 Temporary Workers supplied by the Employment Business pursuant to these Terms are
engaged under contracts for services. They are not the employees of the Employment Business.
The Hirer 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
Hirer.
14.3 The Hirer shall advise the Employment Business of any special health and safety matters about
which the Employment Business is required to inform the 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.
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14.4 The Hirer 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, the Management of Health and Safety at Work
Regulations 1999, by-laws, codes of practice and legal requirements to which the Hirer is
ordinarily subject in respect of the Hirer's own staff (excluding the matters specifically mentioned
in clause 7 above), including in particular the provision of adequate Employer's and Public
Liability Insurance cover for the Temporary Worker during all Assignments.
14.5 The Hirer 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 Hirer to perform the duties of
a person on strike or taking official industrial action.
14.6 The Hirer shall indemnify and keep indemnified the Employment Business against any
Losses incurred by the Employment Business 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 Hirer.
14.7 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.
14.8 If the Temporary Worker brings, or threatens to bring, any AWR Claim, the Hirer undertakes to
take such action and give such information and assistance as the Employment Business may
request, and within any timeframe requested by the Employment Business and at the Hirer'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.
15 NOTICES
All notices which are required to be given in accordance with these Terms shall be in writing
and may be delivered personally or by first class prepaid post to the registered office of the
party upon whom the notice is to be served or any other address that the party has notified the
other party in writing, by email or facsimile transmission. Any such notice shall be deemed
to have been served: if by hand when delivered, if by first class post 48 hours following posting
and if by email or facsimile transmission, when that email or facsimile is sent.
16 SEVERABILITY
If any of the provisions of these Terms shall be determined by any competent authority to
be unenforceable to any extent, such provision shall, to that extent, be severed from the
remaining Terms, which shall continue to be valid to the fullest extent permitted by applicable
laws.
17 GOVERNING LAW AND JURISDICTION
These Terms are governed by the law of England & Wales and are subject to the exclusive
jurisdiction of the Courts of England & Wales.
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Schedule 1
"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
Hirer who:
(a) works for and under the supervision of the Hirer 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 Hirer 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 the Employment Business, 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;
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(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 Hirer'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 Hirer;
(vii) wholly due to a strike, lock-out or other industrial action at the Hirer'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 Hirer, any weeks during which
the Temporary Worker worked for the Hirer 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 Hirer 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 Hirer 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 hirers; 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 hirers. 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 hirers. For
the purpose of this definition, a "hirer" 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.
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Schedule 2
Transfer Fees
(a) The Transfer Fee referred to in clause 8 shall be calculated as follows: 15% of the
Remuneration payable to the Temporary Worker during the first 12 months of the Engagement
or, if the actual amount of the Remuneration is not known, the Charges multiplied by 285.
(b) The Period of Extended Hire, referred to in clause 8, before the Hirer Engages a Temporary
Worker shall be: 40 weeks.
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Schedule 3
Data Protection
1. Processing by Hirer
The Employment Business may provide and the Hirer may process Personal Data relating to potential
Temporary Workers (being the category of Data Subject) for specific or speculative job roles as part of the
recruitment process.
Where a potential Temporary Worker is submitted by the Employment Business for a specific role,
Personal Data relating to that individual shall only be retained for so long as the Temporary Worker is
being considered by or performing that particular role for the Hirer. Where a Temporary Worker is no
longer under consideration, all Personal Data relating to that individual shall be returned to the
Employment Business and/or deleted by the Hirer within 30 days.
Following the end of a period of hire, the Hirer shall only retain Personal Data relating to the Temporary
Worker for 90 days (or such longer period as it may be required by law to do so), after which, any Personal
Data shall be deleted.
The types of Personal Data that may be transferred to the Hirer pursuant to this agreement include:
Name;
Age/date of birth;
Sex/gender;
Photograph;
Marital status;
Contact details;
Education details;
Employment history;
Emergency contacts and details of any dependants;
Referee details;
Immigration status (whether you need a work permit);
Nationality/citizenship/place of birth;
A copy driving licence and/or passport/identity card;
Financial information;
Social security number (or equivalent) and any other tax-related information;
Diversity information including racial or ethnic origin, religious or other similar beliefs, and physical
or mental health, including disability-related information;
Details of any criminal convictions (if relevant to the role);
Details about remuneration, pensions and benefits arrangements; and
Information on interests and needs regarding future employment.
2. Processing by the Employment Business
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PRS may collect and process certain limited data relating to the Hirer as part of the provision of the
services of an employment business to the Hirer and in order to ensure that the relationship runs smoothly.
Details of this processing can be found in the Employment Business’ Privacy Policy, a copy of which can
be found at www.prsjobs.com. Alternatively, a hard copy can be provided on request.
Signed on behalf of the agency
Name
Position
Date
Signed on behalf of the client
Name
Position
Date