It is agreed as follows:
Interpretation and Definitions
Unless the context otherwise requires, references to the singular include the plural, and
references to the masculine include the feminine and vice versa. The headings contained in the Agreement are for convenience only and do not affect their
interpretation. In these Terms of Engagement the following definitions apply:
“Agreed Deductions” means any
deductions the Agency Worker has agreed can be made from their pay;
“Assignment” means the period
during which the Agency Worker is supplied by the Company to provide services to the Hirer. Each
Assignment period will end when the Agency Worker ceases to be supplied to a Hirer or be available
for work except where this relates to normal shift breaks or approved absences.
“Assignment Schedule” means the schedule or written details agreed between the Company and the
Agency Worker for each Assignment containing all relevant particulars of the Assignment;
“AWR” means the Agency Workers Regulations 2010 (as amended from time to time)
“Hirer” means the
person, firm or corporate body together with any subsidiary or associated company as defined by
section 1159 of the Companies Act 2006 to whom the Agency Worker is supplied or introduced and
includes any third party for whom the Agency Worker works pursuant to these Terms of Engagement on
behalf of the Hirer.
“Qualifying Period” means the period as defined in Regulation 7 of the AWR for the Agency Worker to
become entitled to the same basic working and employment conditions as defined in Regulation 5 of
the AWR.
“Relevant Period” means (a) a period of 8 weeks after the last day on which the Agency Worker
worked for the Hirer having been supplied by the Company; or (b) a period of 14 weeks from the
first day on which the Agency Worker worked for the Hirer having been supplied by the company 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;
“Terms” means the terms and conditions set out herein together with any Assignment Schedule to
these terms;
1. The Contract
1.2 These Terms constitute the entire agreement between the Company and the Agency Worker and
supersede all previous agreements between the parties in relation to the subject matter hereof and
shall govern all Assignments undertaken by the Agency Worker. These Terms shall prevail over any
other terms put forward by the Agency Worker.
1.3 No contract shall exist between the Company and the Agency Worker between Assignments.
1.4 No variation or alteration to these Terms shall be valid unless the details of such variation
are agreed between the Company and the Agency Worker and set out in writing and signed by both
parties. A copy of the varied terms shall be given to the Agency Worker stating the date on or
after which such varied terms shall apply.
1.5 If there is a conflict between these Terms and an Assignment Schedule, save for where expressly
stated otherwise the Assignment Schedule shall take precedence.
2. Agency Worker’s Status
2.1 During an Assignment the Agency Worker will be engaged by the Company under a contract for
services.
2.2 The parties acknowledge that the Agency Worker is not an employee of the Company, and these
Terms shall not give rise to a contract of employment between the Company or the Hirer and the
Agency Worker.
2.3 The Agency Worker is supplied as a worker and is entitled to certain statutory rights. Nothing
in these Terms shall be construed as giving the Agency Worker rights in addition to those provided
by statute except where expressly stated.
3. Assignments
3.1 The Company will endeavour to obtain suitable Assignments for the Agency Worker to perform the
agreed type of work shown in the Assignment Schedule.
3.2 The parties agree that the Agency Worker shall not be obliged to accept any Assignment offered
by the Company, and the Company shall incur no liability to the Agency Worker should it fail to
offer Assignments to the Agency Worker.
3.3 The Agency Worker acknowledges that due to the nature of temporary work there may be periods
when no suitable work is available and the Agency Worker agrees that the suitability of work shall
be determined solely by the Company.
3.4 For the purpose of calculating the average number of weekly hours worked by the Agency Worker
on an Assignment for the purposes of the Working Time Regulations 1998 (as amended), the start date
for the relevant averaging period shall be the date on which the Agency Worker commences the first
Assignment.
3.5 The Agency Worker acknowledges that should the Hirer or any third party introduced to the
Agency Worker by the Hirer wish to engage the Agency Worker either directly or through another
employment business, before or during an Assignment or during the Relevant Period, the Company will
be entitled to either charge the Hirer a transfer fee or to agree an extended hire period with the
Hirer at the end of which the Agency Worker may be engaged directly by the Hirer or the third party
or through another employment business.
4. Company’s Obligations
4.1 When an Assignment is offered to the Agency Worker the Company shall provide the Agency Worker
with an Assignment
Schedule.
4.2 If a variation to the Assignment Schedule is agreed between the Agency Worker and the Company,
the Company shall provide a copy of the Assignment Schedule confirming the agreed variation to the
Agency Worker by no later than 5 business days following the day on which the variation was agreed.
4.3 An Assignment Schedule may not be provided by the Company to the Agency Worker in the following
circumstances:
4.3.1. where the Agency Worker is being offered an Assignment in the same position as they have
undertaken within the previous five working days and the Assignment Schedule has already been
provided to the Agency Worker; or
4.3.2. where the Assignment is intended to last for 5 consecutive working days or less and the
Assignment Schedule has been previously provided to the Agency Worker before and the details remain
unchanged. In such situation, the Company may only provide written confirmation of the identity of
the Hirer and the likely duration of the Assignment. Where the Assignment subsequently extends
beyond 5 working days, the Company shall provide an Assignment Schedule to the Agency Worker within
8 days of the start date of the Assignment.
5. Agency Worker’s Obligations
5.1 The Agency Worker shall during every Assignment and afterwards where appropriate:
5.1.1. co-operate with the Hirer’s reasonable instructions and accept the direction and supervision
of any responsible person in the Hirer’s organisation;
5.1.2. make themselves available to the Hirer for not less than the minimum daily working hours
(the Assignment Work Pattern), shown on the Assignment Schedule.
5.1.3. observe all relevant rules, policies and regulations of the Hirer site of which they are
made aware, or which they might reasonably expected to ascertain;
5.1.4. take all reasonable steps to safeguard their own safety and that of any other person who may
be affected by their actions during the Assignment;
5.1.5. not engage in any conduct detrimental to the reasonable interests of the Company or the
Hirer including without limitation any conduct reasonably likely to bring the Company or the Hirer
into disrepute, or which results in the loss of custom or business;
5.1.6. conduct him/herself in a professional manner, to dress appropriately, to wear
any form of identification required by the Hirer and to observe all applicable laws;
5.1.7. at the end of the Assignment or on demand, return to the Company or the Hirer as directed,
all property of the Company or Hirer including but not limited to all equipment, materials,
documents (including copies) and other such materials, security passes, keys, uniforms, personal
protective equipment or clothing.
5.2 If the Agency Worker is unable for any reason to attend work during the course of an
Assignment they should inform the Company, prior to the working day or hours. The Hirer should be
contacted where contact with the Company is not possible, but the Agency Worker must also inform
the Company at the first possible opportunity.
5.3 Where the Agency Worker becomes aware of any reason why they may not be suitable for an
Assignment either before the commencement of or during the Assignment they shall notify the Company
immediately.
5.4 By commencing an Assignment, the Agency Worker acknowledges that he/she is not aware of
anything which will cause a detriment to his/her interests and/or the interests of the Company
and/or the interests of the Hirer by being engaged in such an Assignment. The Agency Worker shall
inform the Company immediately if he/ she becomes aware of any circumstances which would render
such engagement
so detrimental. The Agency Worker will notify the Company immediately of any circumstances that
might reasonably affect the willingness of a Hirer to accept his/her services.
5.5 The Agency Worker warrants that all information given to the Company as to his/ her identity,
permission to work in the UK, experience, training, qualifications and authorisations which the
Hirer considers are necessary, or which are required by law or by any professional body to work in
the position which the Hirer seeks to fill is true and complete.
5.6 Prior to commencement of any Assignment, the Agency Worker shall inform the Company if s/he is
aware that s/he has worked for the Hirer (or for any company which is a parent company of,
subsidiary company of, or shares an ultimate parent company with the Hirer) including via another
employment business or third party at any time since 1st October 2011 up to commencement of the
most recent Assignment and if so, details of when and in what role(s), including details of any
breaks between periods of work, and the reasons for such breaks.
5.7 Where an Agency Worker
believes that s/he is entitled to access to collective facilities and amenities or to be informed
of any relevant vacant posts with the hirer or, having completed the Qualifying Period for
an Assignment, s/he is entitled to but has not received the same basic working and employment
conditions (as defined in the AWR) as if s/he were directly recruited by the Hirer, the Agency
Worker should discuss this with the Company or otherwise raise this in writing with the Company
setting out the premise for the concern.
5.8 The Agency Worker acknowledges that any breach of their obligations under this clause may cause
the Company to suffer loss and they agree that the Company reserves the right to make a claim for
damages to recover such losses from the Agency Worker.
6. Timesheets
6.1 At the end of each week of an Assignment, unless instructed otherwise, the Agency Worker shall
deliver to the Company a fully and accurately completed timesheet indicating the number of hours
worked during the preceding week (or such lesser period) and signed by an authorised representative
of the Hirer.
6.2 Subject to clause 7.3 the Company shall pay the Agency Worker for all hours worked regardless
of whether the Company has received payment from the Hirer for those hours.
6.3 Should the Agency Worker fail to submit a properly completed or authorised timesheet the
Company shall conduct an investigation regarding the hours claimed by the Agency Worker and the
reasons for the Hirer’s refusal to sign a timesheet in
respect of those hours. The Company shall endeavour to complete the investigation in a timely
manner however this may delay any payment due to the Agency Worker.
6.4 The Company shall make no payments to the Agency Worker for hours not worked.
6.5 For the purposes of the Working Time Regulations 1998 (as amended), the Agency Worker’s working
time shall only consist of those periods during which they undertake work for the Hirer as part of
the Assignment. Subject to any amendments made to
the Agency Worker’s basic working conditions during the term of this Agreement in compliance with
Regulation 5 of the AWR, time spent traveling to the Hirer’s premises, lunch breaks and other rest
breaks shall not count as part of the Agency Worker’s
working time for these purposes.
7. Payment
7.1 The Company shall pay to the Agency Worker the rate of pay set out in the relevant Assignment
Schedule which will be paid for time worked during an Assignment weekly in arrears. The hourly rate
may vary but will be at least equivalent to the appropriate statutory minimum wage in force at the
time for the work undertaken.
7.2 The parties acknowledge that the Company is required to make certain deductions from the Agency
Worker’s pay. Pay will be subject to deductions in respect of PAYE pursuant to Sections 44-47 of
the Income Tax (Earnings and Pensions) Act 2003
and Class 1 National Insurance Contributions, and any other deductions which the Company may be
required by law to make and, any Agreed
Deductions, and that the Company is entitled to make deductions from the Agency Worker’s pay for
any overpayment of wages,
holiday pay, non- returned company property and for any monies owed to the Company by the Agency
Worker.
7.3 The Agency Worker may by virtue of having completed the Qualifying Period for an Assignment be
entitled under the AWR to an increase in his/her pay and other emoluments and any such variation
will be notified to the Agency Worker in the Assignment Schedule.
7.4 The Agency Worker agrees to comply with any requirements of the Company and/ or the Hirer
relating to the assessment of the Agency Worker’s performance for the purpose of determining
entitlement to any element of pay including bonuses.
7.5 Subject to any statutory entitlement under the relevant legislation referred to in clauses 9
and 10 below and any other statutory entitlement, the Agency Worker is not entitled to receive
payment from the Company or the Hirer for time not spent on Assignment, whether in respect of
holidays, illness or absence for any other reason unless otherwise agreed.
8. Statutory Paid Annual Leave
8.1 Subject to any increased entitlement pursuant to the AWR, the Agency Worker is entitled to paid
annual leave for time worked during an Assignment according to the statutory minimum as amended
from time to time.
8.2 The current statutory entitlement to paid annual leave is 5.6 weeks or, where relevant, as per
the appropriate statutory minimum which applies to the role that the Agency Worker is undertaking.
8.3 In the event that the Agency Worker is entitled to an increase in paid and/or unpaid annual
leave, by virtue of having completed the Qualifying Period any such increase in entitlement will be
notified to the Agency Worker in the Assignment Schedule.
8.4 The Leave Year is the annual period during which the Agency Worker accrues and may take
statutory leave and commences [*on the date that the Agency Worker starts an Assignment or a series
of Assignments and runs until the anniversary of that date;
8.5 Unless otherwise stated in the relevant Assignment Schedule, paid annual leave accrues in
proportion to the annual leave
entitlement for the amount of time worked by the Agency Worker on Assignment during the Leave Year.
Annual leave does not accrue for any time when the temporary worker is not working on Assignment.
8.6 Save where this clause is amended by the relevant Assignment Schedule, in the course of any
Assignment during the first Leave Year, the Agency Worker is entitled to request leave at the rate
of one-twelfth of the Agency Worker’s total holiday entitlement in each month of the leave year.
8.7 Unless otherwise stated in the relevant Assignment Schedule, where a Agency Worker wishes to
take paid leave during the course of an Assignment they should notify the Company of the dates of
their intended absence giving notice of at least twice the length of the period of leave that they
wish to take. Where the Agency Worker has given notice of a request to take paid annual leave in
accordance with this clause, the Company may give counter-notice to the Agency Worker to postpone
or reduce the amount of leave that the Agency Worker wishes to take. In such circumstances the
Company will inform the Agency Worker in writing giving at least the same length of notice as the
period of leave that it wishes to postpone or reduce it by.
8.8 The Company may require the Agency Worker to take paid annual leave at specific times or notify
the Agency Worker of periods when paid annual leave cannot be taken.
8.9 Unless otherwise stated in the relevant Assignment Schedule, where a Bank or Public Holiday
falls during an Assignment and the Agency Worker does not work on that day, then, subject to the
worker having accrued entitlement to payment for leave, the Agency Worker may upon giving notice be
paid for that day as part of their annual leave entitlement.
8.10 Payment for annual leave is calculated in accordance with statutory requirements and
by reference to the worker’s average remuneration for all hours worked at basic rate over the
previous 52 worked weeks.
8.11 Unless otherwise stated in the relevant Assignment Schedule, all entitlement to leave must be
taken during the course of the Leave Year in which it accrues and none may be carried forward to
the next year. The Agency Worker is responsible for ensuring that all paid annual leave is
requested and taken within the Leave Year.
8.12 Where this contract is terminated by either party, the Agency Worker shall be entitled to a
payment in lieu of any untaken leave where the amount of leave taken is less than the amount
accrued at the date of termination.
9. Statutory Sick Pay
9.1 The Agency Worker may be eligible for Statutory Sick Pay provided that they meet the relevant
statutory criteria.
9.2 The Agency Worker is required to provide the Company with evidence of incapacity to work which
may be by way of a
self-certificate for the first 7 days of incapacity and a doctor’s certificate thereafter.
9.3 For the purposes of the Statutory Sick Pay scheme the qualifying days for entitlement to
payment are the days on which the
Agency Worker is due to work on an Assignment. Statutory Sick Pay is not payable for the first
three qualifying days in a period of incapacity for work.
9.4 For the avoidance of doubt where the Agency Worker was not due to work on an assignment there
is no entitlement to Statutory Sick Pay.
9.5 In the event that the Agency Worker submits a Statement of Fitness for Work or similar medical
evidence, which indicates that the Agency Worker may, subject to certain conditions, be fit to
work/return to work, the Company will in its absolute discretion determine whether the Agency
Worker will be (a) placed in a new Assignment or (b) permitted to continue in an ongoing
Assignment. In making such determination the Company may consult with the Hirer and the Agency
Worker as appropriate to assess whether the conditions identified in the Statement or similar
documentation can be satisfied for the duration of the Assignment. In such a case the Agency
Worker’s placement in a new Assignment or continuation in an ongoing
Assignment may be subject to the Agency Worker agreeing to a variation of the Terms or the
assignment details set out in the Assignment Schedule to accommodate any conditions identified.
10. Termination
10.1 Either party may terminate an Assignment or these Terms at any time without prior notice or
liability.
10.2 The Agency Worker acknowledges that the continuation of an Assignment is subject to and
conditioned by the continuation of the contract between the Company and the Hirer. In the event
that the contract between the Company and the Hirer is terminated for any reason the Assignment
shall cease with immediate effect without liability of the Company (save for payment for hours
worked by the Agency Worker up to the date of termination of the Assignment).
10.3 If the Agency Worker does not inform the Company or the Hirer that they are unable to attend
work during the course of an Assignment pursuant to clause 6.2 this will be treated as termination
of the Assignment by the Agency Worker in accordance with Clause 11.1, unless the Agency Worker can
show that exceptional circumstances prevented them from complying with their obligations under
Clause 6.2.
10.4 If the Agency Worker is absent during the course of an Assignment and the Assignment has not
been otherwise terminated under Clauses 11.1 or 11.3 the Company will be entitled to terminate the
Assignment in accordance with Clause 11.1 if the work to which the Agency Worker was assigned is no
longer available.
10.5 If the Agency Worker does not report to the Company to notify their availability for work for
a period of 3 weeks, the Company will forward their P45 to their last
known address.
11. Intellectual Property Rights
11.1 The Agency Worker acknowledges that all copyright, title and interest of whatever
nature(including but not limited to copyright and patent application rights) and all
other intellectual property rights deriving from work carried by them for the Hirer in connection
with an assignment shall vest in and remain the property of the Hirer throughout the world free
from any interest of the Agency Worker, and the Agency
Worker will do anything that the Hirer may reasonably require in order effectively to vest such
rights in the Hirer or such third party as the Hirer specifies or to evidence the same (whether
before or after the termination of these Terms).
12. Confidentiality
12.1 The Agency Worker may, become privy to the confidential information of the Company or any
Hirer at which the Agency Worker works on Assignment.
12.2 Confidential Information shall mean any confidential information belonging to or about the
Hirer or the Company, which if used by the Agency Worker other than in the course of the Assignment
for the benefit of the Hirer or if disclosed to any third party either during or at anytime after
the termination of the Assignment would be of value or could cause damage to the Hirer or the
Company whether directly or indirectly. Confidential information is confidential if it is labelled
confidential, if the Hirer expressly states (whether in writing or otherwise) to the Agency Worker
that the information is confidential or if the Agency Worker ought to have known that the
information may be confidential.
12.3 Unless required to do so in the proper performance of their duties, the Agency Worker must not
divulge or communicate to any person; use for any purposes other than those of the Company or, as
appropriate, any Hirer; or cause any unauthorised disclosure, through any failure to exercise due
care and attention, of any confidential information relating to the Company or any Hirer.
12.4 The Agency Worker agrees to deliver up to the Hirer or the Company (as directed) at the end of
each Assignment all documents and other materials belonging to the Hirer (and all copies) which are
in its possession including documents and other materials created by them during the course of an
Assignment; and
12.5 The restrictions under this Confidentiality Clause shall continue to apply after the
termination of this Agreement without limit in point of time but shall cease to apply to
information or knowledge which is ordered to be disclosed by a Court of competent jurisdiction or
otherwise required to be disclosed by law or which comes into the public domain other than as a
result of a breach by the Agency Worker of their obligations under this Agreement.
13. Data Protection
13.1 The Agency Worker agrees that the Company may collect, retain and process sensitive personal
data (for the purposes of the Data Protection Act 1998) relating to them, including medical details
and details of gender, race and ethnic origin.
14. General
14.1 If any provision, clause or part-clause of these Terms is held to be invalid, void, illegal,
or otherwise unenforceable by any judicial body, the remaining provisions of this Agreement shall
remain in full force and effect to the extent permitted by law. Any delay by the Company in
responding to any breach by the Agency Worker of this Agreement shall not be deemed nor operate as
a waiver of that breach. If the Company expressly waives a breach of this Agreement by the Agency
Worker, this will not constitute a waiver of any future breach.
14.2 The Company shall act as a gangmaster (as defined in Section 4 of the Gangmasters (Licensing)
Act) when introducing the Agency Worker into Assignments with its Clients to which this Act applies
and as an employment business (as defined in Section 13(3) of the Employment Agencies Act 1973)
when introducing or supplying the Agency Worker into all other Assignments with its Hirers.
14.3 All notices which are required to be given in accordance with this Agreement 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.
14.4 These Terms are governed by the law of [England/ Wales/Scotland/Northern Ireland] and are
subject to the exclusive jurisdiction of the Courts of [England/Wales/ Scotland/Northern Ireland] in respect of any dispute arising from these Terms or its subject matter.