Terms & Conditions
TERMS OF BUSINESS FOR THE SUPPLY OF FLEXI-WORKERS
1. Definitions and interpretation
1.1. In these Terms the following definitions apply:
“AETR” means the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport of 1 July 1970;
“Assignment” means assignment services to be performed by the Flexi-Worker for the Hirer for a period of time during which the Flexi-Worker is supplied by the Employment Business to work temporarily for and under the supervision and direction of 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 Worker Regulations 2010
“AWR Claim” means any complaint or claim to a tribunal or court made by or on behalf of the Flexi-Worker against the Hirer and/or the Employment Business for any breach of the AWR;
“Calendar Week” means any period of seven days starting with the same day as the first day of the First Assignment;
“Charges” means the Employment Business’s charges calculated in accordance with clause 7 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 Flexi-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 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” means all Personal and Sensitive Personal Data that is provided by the Employment Business or any of its employees or that is otherwise made available to, or is accessible by, the Hirer or any of its employees;
“Data Controller” shall have the meaning given to it in GDPR;
“Data Processor” shall have the meaning given to it in GDPR.
“Data Protection Laws” means the EU General Data Protection Regulation, any applicable statutory or regulatory provisions and all European Directives and regulations in force from time to time relating to the protection and transfer of personal data;
“Data Subject” shall have the meaning given to it in GDPR
“Driving Legislation” means the Transport Act 1968, the AETR, the RT(WT)R and the EU Drivers’ Hours Regulation;
“Effective Date” means the date these Terms of Business are accepted by the Hirer pursuant to clause 2.1;
“Employment Business” SOONAS SOLUTIONS LTD (Company Registration Number 13149258)
“Engagement” means the engagement (including the Flexi-Worker’s acceptance of the Hirer’s offer), employment or use of the Flexi-Worker by the Hirer or by any third party to whom the Flexi-Worker has been introduced by the Hirer, on a permanent or temporary basis, whether under a contract of service or for services; under an agency, licence, franchise or partnership agreement; or any other engagement; or through a limited company of which the Flexi-Worker is an officer, employee or other representative; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;
“EU Drivers’ Hours Regulation” means Regulation (EC) No. 561/2006 of the European Parliament and of the Council of 15 March 2006;
“First Assignment” means: (a) the relevant Assignment; or (b) if, prior to the relevant Assignment: (i) the Flexi-Worker has worked in any assignment in the same role with the relevant Hirer as the role in which the Flexi-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 Flexi-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);
“Flexi-Worker” means the individual (whether an employee, worker, individual engaged via a personal service company, contractor or umbrella contractor) who is introduced by the Employment Business to provide services to the Hirer;
“General Data Protection Regulations (GDPR)” means the EU General Data Protection Regulation;
“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 Flexi-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 Flexi-Worker; or (ii) the Hirer’s interview of the Flexi-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 Flexi-Worker; and, in any case, which leads to an Engagement of the temporary worker or the Flexi-Worker; and “Introduced” and “Introducing” shall be construed accordingly;
“ITEPA” means the Income Tax (Earnings and Pensions) Act 2003;
“Losses” means all losses, liabilities, damages, costs, expenses, fines, penalties or interest, whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands;
“Period of Availability” means a “period of availability” as defined under the RT(WT)R,
“Period of Extended Hire” means any additional period that the Hirer wishes the Flexi-Worker to be supplied for beyond the duration of the original Assignment or series of Assignments as an alternative to paying a Transfer Fee;
“Personal Data” means any information relating to an identified or identifiable natural individual as defined by Data Protection Laws;
“Personal Data Breach” means a breach of security leading to the accidental or unauthorised or unlawful destruction, or accidental loss or alteration, unauthorised disclosure or access to Data
“Personal Service Company” means a limited company that typically has a sole director, the contractor, who owns most or all of the shares;
“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;
“Renumeration” 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 Flexi-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 £3,000 will be added to the salary in order to calculate the Employment Business’s fee;
“RT(WT)R” means the Road Transport (Working Time) Regulations 2005
“Sensitive Personal Data” means the special categories of Personal Data referred to in Regulation 9 (1) GDPR;
“Service Level Agreement (SLA)” means any additional document that defines the level of service expected from the Employment Business for the services provided to the Hirer.
“Swedish Derogated Contract” means a permanent contract of employment with the Employment Business meeting the requirements of Regulation 10 of AWR (also known as Pay Between Assignments Contracts).
“Temporary Work Agency” means as defined in Schedule 1 to these Terms;
“Terms” means these terms of business (including the attached schedules) together with any applicable Assignment Details Form and Service Level Agreements;
“Transfer Fee” means the fee payable in accordance with clause 9 of these Terms and Regulation 10 of the Conduct Regulations;
“Umbrella Contractor” means a contractor employed by an intermediary and that intermediary supplies a service to the Employment Business;
“Vehicle” means a “goods vehicle” as defined under the RT(WT)R;
“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.
“Working Time” means “working time” as defined under the RT(WT)R,
“WTR” 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.
1.5 These Terms of Business take effect from the Effective Date and shall supersede all previous terms and conditions.
1.6 If any provision of the Contract is found to be invalid or unenforceable such invalidity or unenforceability shall not affect any other provisions and if such provision would be valid or enforceable if some part of the provision was deleted the provision in question shall apply with such modifications as may be necessary to make it valid and enforceable.
2. The Contract
2.1. These Terms constitute the entire agreement between the Employment Business and the Hirer, whether signed or not; for the supply of the Flexi-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 Flexi-Worker, or the passing of any information by the Hirer about a Flexi-Worker to any third party following an Introduction. Where applicable the Employment Business’s Terms of Business for the Introduction of Permanent Staff may also apply to this agreement.
2.2. 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. 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 Flexi-Workers for Assignments with the Hirer.
2.5. The Hirer acknowledges that no Flexi-Worker carrying out an Assignment has opted out of the Conduct Regulations and that all of the Conduct Regulations apply to this Agreement.
2.6. The Employment Business will apply for credit references on 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 Flexi-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 Hirer considers necessary or which are required by law or any professional body for the Flexi-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 Flexi-Worker to commence the Assignment; and
3.1.6. the duration or likely duration of the Assignment.
3.2. The Hirer will comply with its obligations under AWR and specifically, Regulations 12 (Rights of Flexi-Workers in relation to access to collective facilities and amenities) and 13 (Rights of Flexi-Workers in relation to access to employment) of the AWR.
3.3. To enable the Employment Business to comply with its obligations under the AWR, the Hirer undertakes as soon as possible prior to the commencement of each Assignment and during each Assignment (as appropriate) and at any time at the Employment Business’s request:
3.3.1. to inform the Employment Business of any Calendar Weeks in which the relevant Flexi-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;
3.3.2. if the Flexi-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 which may count towards the Qualifying Period, 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;
3.3.3. to inform the Employment Business if the Flexi-Worker has prior to the date of commencement of the relevant Assignment and/ or during the relevant Assignment carried out work which could be deemed to count towards the Qualifying Period for the relevant Assignment in accordance with Regulation 9 of the AWR because s/he has:
3.3.3.1. completed two or more assignments with the Hirer; or
3.3.3.2. completed at least one assignment with the Hirer and one or more earlier assignments with any member of the Hirer’s Group; or
3.3.3.3. worked in more than two roles during an assignment with the Hirer and on at least two occasions worked in a role that was not the same role as the previous role;
3.3.4. save where the Flexi-Worker will not complete the Qualifying Period during the term of the Assignment, to:
3.3.4.1. provide the Employment Business with written details of the Relevant Terms and Conditions the Flexi-Worker would be entitled to for doing the same job if the Flexi-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;
3.3.4.2. inform the Employment Business in writing whether the Relevant Terms and Conditions provided are those of a hypothetical directly recruited employee or worker or those of a Comparable Employee;
3.3.4.3. if the Relevant Terms and Conditions provided are those of a Comparable Employee, provide the Employment Business with a written explanation of the basis on which the Hirer considers that the relevant individual is a Comparable Employee; and
3.3.4.4. inform the Employment Business in writing of any variations in the Relevant Terms and Conditions made at any time during the relevant Assignment after the Qualifying Period commenced.
3.3.4.5. provide the Employment Business with written details of its pay and benefits structures and appraisal processes and any variations of the same.
3.4. In addition, for the purpose of awarding any bonus to which the Flexi-Worker may be entitled under the AWR, the Hirer will:
3.4.1. integrate the Flexi-Worker into its relevant performance appraisal system;
3.4.2. assess the Flexi-Worker’s performance;
3.4.3. provide the Employment Business with copies of all documentation relating to any appraisal of the Flexi-Worker, including without limitation written details of the outcome of any appraisal and the amount of any bonus awarded; and
3.4.4. provide the Employment Business with all other assistance the Employment Business may request in connection with the assessment of the Flexi-Worker’s performance for the purpose of awarding any bonus.
3.5 The Hirer will comply with all the Employment Business’s requests for information and any other requirements to enable the Employment Business to comply with the AWR.
3.6 The Hirer warrants that:
3.6.1 all information and documentation supplied to the Employment Business in accordance with clauses 3.2, 3.3, 3.4 and 3.5 is complete, accurate and up-to date; and
3.6.2 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 3.2, 3.3, 3.4 and 3.5.
3.7 Without prejudice to clauses 16.8 and 16.9, the Hirer shall inform the Employment Business in writing of any:
3.7.1 oral or written complaint the Flexi-Worker makes to the Hirer which is or may be a complaint connected with rights under the AWR; and
3.7.2 written request for information relating to the Relevant Terms and Conditions that the Hirer receives from the Flexi-Worker as soon as possible but no later than 7 calendar days from the day on which any such 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 Flexi-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.
3.8 The Hirer undertakes that it knows of no reason why it would be detrimental to the interests of the Flexi-Worker for the Flexi-Worker to fill the Assignment.
4. Hirer Obligations In Relation To Driving Assignments
4.1. In relation to any Vehicles and operations subject to the Goods Vehicles (Licensing of Operators) Act 1995 (the Act), it is a condition of these Terms that the Hirer:
4.1.1 holds a complete, accurate and up-to-date operator’s licence under the Act throughout the period of any Assignment and the Hirer hereby warrants that it holds such a licence;
4.1.2 will comply with all of its obligations for obtaining and maintaining such operator’s licence under the Act; and
4.1.3 will upon request permit the Employment Business to inspect and take copies of the Hirer’s operator’s licence and policies of insurance for the vehicles to be driven by the Flexi-Worker.
4.2 Flexi-Workers are supplied by the Employment Business as drivers (“drivers”) on the sole understanding that the Hirer holds an operator’s license under the Transport Act 1968 as amended (“the Act”) when required and that it will ensure all vehicles comply with all the relevant legislation, British and European standards, regulations, codes of practice, guidance notes and other requirements of any relevant government or governmental agency and to the extent that such regulations are advisory, compliance with which is advisable but not mandatory, the minimum compliance to be achieved should be best industry practice.
4.3 The Hirer will assist the Employment Business in complying with the Employment Business’s duties under such provisions of the Driving Legislation and WTR as may be applicable and any other similar legislation as may be applicable to the Assignment in any country or countries by supplying any relevant information about and copies of any relevant documentation (including without limitation tachograph charts) relating to 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 such legislation. If the Hirer requires the services of a Flexi-Worker for more than 48 hours in any week during 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 Flexi-Worker to work in excess of 48 hours.
4.4 The Hirer undertakes to comply with all statutory duties applicable in respect of any Assignment, including (without limitation) making proper arrangements to ensure that the following matters are compliant with the relevant statutory obligations: drivers’ hours and records, the issue, collection and other use of tachographs, drivers cards and company cards, maintenance and safety of all Vehicles driven, operated or used by any Flexi-Worker, all duties under health and safety regulations, road traffic and liability insurances including fully comprehensive insurance for the Vehicle and its contents. The Hirer agrees to allow the Employment Business to inspect and take copies of any relevant policies of insurance and any other relevant documentation as requested.
4.5 As far as is possible, the Employment Business will check references of drivers and will examine driving licenses and permits; notwithstanding this, the Hirer agrees to take direct responsibility for all statutory duties where applicable in respect of driving licenses and permits, drivers’ hours and records, the issue and collection of tachograph cards, maintenance and safety of vehicles, Health and Safety Regulations, and Road Traffic and liability insurance, including but not limited to fully comprehensive insurance for the vehicle to be driven and its contents.
4.6 To assist the Hirer in complying with the relevant provisions of the Transport Act, the Employment Business agrees to provide the Hirer upon request with such information as is available to the Employment Business about any driving assignments carried out by the driver in the seven days immediately preceding the commencement of an Assignment with the Hirer, provided the driver shall have worked for a client of the Employment Business during those seven days.
4.7 The Hirer will take all reasonable steps and give any reasonable instructions to the Flexi-Worker for the purpose of ensuring that the performance of the Assignment complies with the Department of Transport’s Highway Code and any other rules regarding road safety applicable to the country or countries in which any journeys (or portion of journeys) take place.
4.8 The Hirer will take all reasonable steps to ensure that all transport time schedules which it implements and any other arrangements regarding working time in relation to the Assignment will conform in full to the requirements of the Driving Legislation and the WTR as may be applicable to the Assignment and any other similar regulations in any country or countries applicable to the Assignment.
5 Information To Be Provided By The Employment Business To The Hirer
5.2 When Introducing a Flexi-Worker to the Hirer the Employment Business shall inform the Hirer:
5.2.1 of the identity of the Flexi-Worker.
5.2.2 that the Flexi-Worker has the necessary or required experience, training, qualifications and any authorisation required by law or a professional body to work in the Assignment.
5.2.3 that the Flexi-Worker is willing to work in the Assignment; and
5.2.4 the Charges.
5.3 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 Flexi-Worker is Introduced for an Assignment in the same position as one in which the Flexi-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.
5.4 The Employment Business will provide such personal protective equipment (PPE) necessary to ensure the health, safety and welfare of the Flexi-worker, where applicable.
6 Timesheets/Authorisation Of Hours
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 one week or less) the Hirer shall sign the Employment Business’s timesheet verifying the number of hours worked by the Flexi-Worker during that week; or in the case of a Time and Attendance System (T&A), authorise the hours recorded on the T&A. Invoices are prepared from the reported number of hours for each Flexi-Workers.
6.2 Signature of the timesheet or authorisation of the recorded hours by the Hirer is confirmation of the number of hours worked. If the Hirer is unable to sign a timesheet produced for authentication by the Flexi-Worker/authorise the hours recoded on a T&A system 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 Flexi-Worker. Failure to sign the timesheet/authorise hours does not absolve the Hirer of its obligation to pay the Charges in respect of the hours worked.
6.3 The Hirer shall not be entitled to decline to sign a timesheet/authorise hour on the basis that it is dissatisfied with the work performed by the Flexi-Worker. In the event that the Hirer is dissatisfied with the Flexi-Worker the provisions of clauses 11 and 12 below shall apply.
7 Charges
7.1 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 Flexi-Worker and comprise the following:
7.1.1 the Flexi-Worker’s hourly rate of pay.
7.1.2 an amount to cover any additional payments that the Employment Business is required to pay to the Flexi-Worker (engaged on a Swedish Derogated Contract if applicable) during periods which the Flexi-Worker is available for work but is not required to carry out an Assignment with the Hirer;
7.1.3 an amount equal to any paid holiday leave to which the Flexi-Worker is entitled in connection with the WTR, and where applicable, the AWR and which is accrued during the course of an Assignment.
7.1.4 any other amounts to which the Flexi-Worker is entitled under the AWR, where applicable.
7.1.5 apprenticeship Levy in accordance with current legislation.
7.1.6 pension contributions in accordance with current legislation.
7.1.7 statutory sick pay.
7.1.8 employer’s National Insurance contributions.
7.1.9 any travel, hotel or other expenses driving charges (for example motorway and bridge tolls, any congestion charge or similar charge) as may have been agreed with the Hirer or, if there is no such agreement, such expenses as are reasonable.
7.1.10 the Employment Business’s commission.
7.1.11 redundancy and notice pay where the Flexi-Worker is engaged on a Swedish Derogated Contract, the Hirer’s need for the Flexi-Worker ceases and the Employment Business is unable to offer the Flexi-Worker an assignment with another hirer; and
7.1.12 any other sums due to the Flexi-Worker arising out of any future legislative changes.
7.2 For Flexi-Workers involved in operations which are subject to the EU Drivers’ Hours Regulation or the RT(WT)R, the number of hours worked by the Flexi-Worker comprises both the total number of hours of Working Time and the total number of hours spent being available during any Period of Availability. Unless otherwise agreed between the parties, the Hirer will not be obliged to make any payment in relation to rest breaks taken during a shift by a Flexi-Worker which are required to be taken by that Flexi-Worker by virtue of the EU Drivers’ Hours Regulation or the RT(WT)R.
7.3 The Employment Business reserves the right to vary the Charges agreed with the Hirer, by giving written notice to the Hirer:
7.3.1 in order to comply with any additional liability imposed by statute or other legal requirement or entitlement, including but not limited to the AWR, ITEPA, the NICs legislation, the WTR, the apprenticeship Levy and the Pensions Act 2008; and/or
7.3.2 if there is any variation in the Relevant Terms and Conditions.
7.4 The Employment Business will invoice the Charges to the Hirer on a weekly basis. The Hirer will pay the Charges within 7 days of the date of the invoice.
7.5 In addition to the Charges, the Hirer will pay the Employment Business an amount equal to any bonus that the Hirer awards to the Flexi-Worker in accordance with clause 3.5 immediately following any such award and the Employment Business will pay any such bonus to the Flexi-Worker. For the avoidance of doubt, the Hirer will also pay any employer’s National Insurance Contributions, WTR, Pension contributions, Apprenticeship Levy (where applicable) and the Employment Business’s commission on the bonus in addition to any bonus payable to the Flexi-Worker.
7.6 VAT is payable at the applicable rate on the entirety of the Charges.
7.7 The Employment Business reserves the right to charge interest on invoiced amounts unpaid by the due date at the rate of 2% per annum above the base rate from time to time of The Bank of England from the due date until the date of payment.
7.8 The Employment Business will not refund the Charges.
7.9 The Hirer’s obligations under this clause 7 shall be performed without any right of the Hirer to invoke set-off, deductions, withholdings or other similar rights.
8 Payment Of The Flexi-Worker
The Employment Business is responsible for paying the Flexi-Worker and where appropriate, for the deduction and payment of National Insurance Contributions and PAYE Income Tax. The Hirer must not give any form of payment directly to the Flexi-Worker.
9 Suitability Checks And Information To Be Provided In Special Situations
9.1 The Hirer shall advise the Employment Business at the time of instructing the Employment Business to supply a Flexi-Worker whether during the Assignment, the Flexi-Worker will be required to work with, care for or attend one or more Vulnerable Persons or engage in regulated activity as defined in the Safeguarding Vulnerable Groups Act 2006.
9.2 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, and to allow the Employment Business to select a suitable Flexi-Worker for the Assignment.
9.3 Where the Flexi-Worker is required by law, or any professional body to have any qualifications or authorisations to work on the Assignment or where the Assignment involves working with, caring for or attending one or more Vulnerable Persons the Employment Business will:
9.3.1 take all reasonably practicable steps to obtain and offer to provide to the Hirer copies of any relevant qualifications or authorisations of the Flexi-Worker; and
9.3.2 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 Flexi-Worker and who have agreed that the references they provide may be disclosed to the Hirer;
9.3.3 take such other reasonably practicable steps as are required to confirm that the Flexi-Worker is suitable for the Assignment.
9.4 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.
9.5 In the event that the Hirer removes a Flexi-Worker from an Assignment in circumstances which would require the Employment Business to provide information to the Disclosure and Barring Service (or equivalent authority) under the Safeguarding Vulnerable Groups Act 2006, the Hirer will provide sufficient information to the Employment Business to allow it to discharge its statutory obligations.
10 Unsuitability Of The Flexi-Worker
10.1 The Hirer undertakes to supervise the Flexi-Worker sufficiently to ensure the Hirer’s satisfaction with the Flexi-Worker’s standards of work. If the Hirer reasonably considers that the services of the Flexi-Worker are unsatisfactory, the Hirer may terminate the Assignment either by instructing the Flexi-Worker to leave the Assignment immediately, or by directing the Employment Business to remove the Flexi-Worker. The Employment Business may, in its absolute discretion, in such circumstances, reduce or cancel the Charges for the time worked by that Flexi-Worker, provided that the Hirer has notified the Employment Business immediately that they have asked the Flexi-Worker to leave the Assignment or the Assignment terminates:
10.1.1 within 4 hours of the Flexi-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 Flexi-Worker is confirmed in writing to the Employment Business within 48 hours of the termination of the Assignment.
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 Flexi-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, the Hirer shall remain liable for all such 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 two hours if the Flexi-Worker fails to attend work or has notified the Hirer that they are unable to attend work for any reason.
11 Transfer Fees
11.1 The Hirer shall be liable to pay a Transfer Fee if the Hirer Engages a Flexi-Worker Introduced by the Employment Business other than via the Employment Business or introduces the Flexi-Worker to a third party and such introduction results in an Engagement of the Flexi-Worker by the third party other than via the Employment Business and:
11.1.1 where the Flexi-Worker has been supplied by the Employment Business, such Engagement takes place during the Assignment or within the Relevant Period; or
11.1.2 where the Flexi-Worker has not been supplied, such Engagement takes place within 12 weeks from the date of the Introduction to the Hirer.
11.2 The Transfer Fee will be calculated as follows for the engagement of a Flexi-Worker, other than via the Employment Business; (directly by the Hirer, or via an introduction to a third party that leads to the engagement of the Flexi-Worker):
(a) 17.5% of the Remuneration payable to the Flexi-Worker during the first 12 months of the Engagement other than via the Employment Business or, if the actual amount of the Remuneration is not known, the hourly Charges referred to in clause 7 multiplied by 250. No refund of the Transfer Fee will be paid in the event that the Engagement subsequently terminates. VAT is payable in addition to any fee due.
(b) In the event that the Engagement of the Flexi-Worker other than via the Employment Business is for a fixed term of less than 12 months, the fee in clause 9.2(a), will apply pro-rata. If the Engagement is extended beyond the initial fixed term or if the Hirer re-engages the Flexi-Worker within 6 months of the termination of the first Engagement the Hirer shall be liable to pay a further fee based on the additional Remuneration applicable for the period of Engagement following the initial fixed term up to the termination of the second Engagement or the first anniversary of its commencement, whichever is sooner. VAT is payable in addition to any fee due.
11.3 If the Hirer wishes to engage the Flexi-Worker other than via the Employment Business without liability to pay a Transfer Fee, the Hirer may, subject to giving one week’s written notice to the Employment Business, engage the Flexi-Worker for the Period of Extended Hire. The Period of Extended Hire being 26 weeks.
11.4 During such Period of Extended Hire the Employment Business shall supply the Flexi-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 9.3; and the Hirer shall continue to pay the Charges set out in clause 7. If the Employment Business is unable to supply the Flexi-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 Flexi-Worker on the same terms as the Assignment; but the Flexi-Worker is Engaged by the Hirer or a third party, 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 Flexi-Worker before being Engaged by the Hirer or a third party. If the Hirer fails to give notice of its intention to engage the Flexi-Worker other than via the Employment Business before such Engagement commences, the parties agree that the Transfer Fee shall be due in full.
11.5 No refund of the Transfer Fee will be paid in the event that the Engagement of the Flexi-Worker other than via the Employment Business by the Hirer or by a third party to which the Hirer introduces the Flexi-Worker terminates or terminates before the end of the fixed term referred to in clause 9.2(b).
11.6 VAT is payable in addition to any Transfer Fee due.
12 Termination Of The Assignment
Any of the Hirer, the Employment Business or the Flexi-Worker may terminate an Assignment at any time without prior notice and without liability (except in the case of termination by the Hirer, who shall be liable for any Charges due under clause 7 above).
13 TUPE
13.1 In the event that this contract gives rise to a TUPE transfer, the Hirer agrees to indemnify the Employment Business against any Losses incurred by the Employment Business arising from any act or omission of the Hirer or a previous supplier of temporary workers prior to the date of transfer or arising from any failure by the Hirer or a previous supplier of temporary workers to comply with their obligations under TUPE.
13.2 In the event of the Employment Business no longer being the supplier of choice to the Hirer, the parties anticipate that TUPE will apply to all Flexi-Workers assigned to the Hirer and the Employment Business’s internal account management team and the parties agree that this clause 13 applies.
13.3 The Employment Business will work with the Hirer and the new supplier of temporary workers to ensure a smooth transition of the Flexi-Workers and internal account team (where applicable) to the new supplier of temporary workers. In the event that the Hirer elects for the Period of Extended Hire as referred to in clause 9.3, the parties will work to achieve a smooth transition to take effect at the end of that period.
13.4 The Hirer agrees to indemnify the Employment Business against any Losses incurred by the Employment Business arising from any act or omission of the Hirer or a new supplier of temporary workers following the date of transfer or arising from any failure by the Hirer or a new supplier of temporary workers to comply with their obligations under TUPE.
14 General Data Protection Regulations (Gdpr)
14.1 In the course of the commercial dealings between the parties the Employment Business will need to provide the Hirer with certain Data.
14.2 These clauses are entered into to ensure both parties comply with their obligations under GDPR and all applicable Data Protection Laws.
14.3 The Employment Business agrees to use all reasonable endeavours to ensure that the Data supplied to the Hirer in the course of the commercial dealings between the parties is accurate, relevant and limited to the purpose for which it is supplied.
14.4 The Hirer Warrants that all Data have been and will continue to be collected and processed in accordance with the requirements of all applicable Data Protection Laws;
14.5 The Hirer shall take appropriate technical and organisational measures to adequately protect all Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure taking into account the nature of the processing;
14.6 Where the Hirer acts as Data Processer, the Hirer shall process Data only within the scope of the Employment Business’s documented instructions;
14.7 The Hirer shall not transfer or process any Data outside the EEA without the consent of the Employment Business (and where such consent is obtained, subject always to appropriate consents or protections as required under applicable data protection and privacy Laws);
14.8 The Hirer warrants that they have provided all required notices and obtained all necessary consents from the relevant Data Subjects to allow it to process, control, transmit, store or otherwise handle Data;
14.9 The Hirer shall make available to the Employment Business on reasonable notice all information necessary to demonstrate compliance with all applicable Data Protection Laws and allow for and contribute to audits on reasonable notice carried out by the Employment Business or another auditor mandated by the Employment Business;
14.10 The Hirer shall comply with the instruction of the Employment Business as regards the transfer/sharing of data between the parties. If the Hirer requires Data not already in its control to be provided by the Employment Business, the Hirer shall set out their legal basis for the request of data and accept that the Employment Business may refuse to share/transfer Data where the Employment Business does not deem it for relevant or for legitimate purpose applicable by law;
14.11 Should the Hirer become aware of a known or suspected Personal Data Breach, the Hirer shall provide the Employment Business with a description of the Personal Data Breach, the types of data that was the subject of the Personal Data Breach and the identity of each affected person as soon as such information can be collected or otherwise becomes available, as well as any other information the Employment Business may reasonably request relating to the Personal Data Breach. In the event of a Personal Data Breach, the Hirer will without undue delay (i) take action immediately to investigate the Personal Data Breach and to identify, prevent recurrence and make reasonable efforts to mitigate the effects of any such Personal Data Breach and (ii) to carry out any recovery or other action necessary to remedy the Personal Data Breach. The Hirer shall not release or publish any filing, communication, notice, press release or report concerning any Personal Data Breach without the prior written approval of the Employment Business;
14.12 The Hirer shall maintain proper records of all Data that is processed on behalf of the Employment Business and if any part of the Data ceases to be required for the purposes of work finding services, including without limitation upon termination for whatever reason or expiry, the Hirer shall upon written request return such Data to the Employment Business or, at the Employment Business’s discretion, and to the extent technically feasible, permanently destroy or procure the destruction of the Data (and provide written confirmation to Employment Business of the same). Where the Hirer is required by applicable law to retain a copy of the Data it shall retain no more copies than are necessary to comply with such applicable law, and shall continue to comply with all applicable laws concerned with the storage, processing, handling and security of such Data;
14.13 The Hirer shall ensure that any persons authorised by the Hirer to process the Data have committed themselves to ensuring the confidentiality of that Data;
14.14 The Hirer shall take all measures necessary to ensure the security of the Data pursuant to Article 32 GDPR;
14.15 Where the Hirer acts as a Data Processor, the Hirer shall ensure that the conditions laid down by GDPR for engaging another processor are met;
14.16 Where the Hirer acts as a Data Processer, the Hirer shall provide all necessary assistance to the Employment Business in order to allow the Employment Business, as Data Controller, to comply with any request from a Data Subject to exercise the Data Subject’s rights under GDPR;
14.17 The Hirer shall provide all necessary assistance to the Employment Business in order to ensure compliance with the obligations laid down by Articles 32 to 36 GDPR; and
14.18 The Hirer shall indemnify and keep indemnified the Employment Business against all costs, claims, losses, damages, liabilities and expenses (including legal expenses) arising out of, or in connection with, any breach of this clause 14, its employees, agents and/or sub-contractors.
15 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 Flexi-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.
16 Liability
16.1 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 Flexi-Worker and to provide the same in accordance with the Hirer’s requirements; no liability is accepted by the Employment Business for any Losses arising from any failure to provide any Flexi-Worker for all or part of the Assignment or from the negligence, dishonesty, misconduct or lack of skill of the Flexi-Worker or if the Flexi-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.
16.2 Flexi-Workers supplied by the Employment Business pursuant to these Terms are engaged either:
16.2.1 under contracts of service whereby they are the employees of the Employment Business but are deemed to be under the supervision, direction and control of the Hirer from the time they report to take up duties and for the duration of the Assignment. The Hirer agrees to be responsible for all acts, errors or omissions of the Flexi-Worker, whether wilful, negligent, or otherwise as though the Flexi-Worker was on the payroll of the Hirer; or:
16.2.2 via a Personal Service Company, whereby they are not employees of the Employment Business but are deemed to be under the supervision, direction and control of the Hirer from the time they report to take up duties and for the duration of the Assignment. The Hirer agrees to be responsible for all acts, errors or omissions of the Flexi-Worker, whether wilful, negligent, or otherwise as though the Flexi-Worker was on the payroll of the Hirer.
16.3 The Hirer shall advise the Employment Business of any special health and safety matters about which the Employment Business is required to inform the Flexi-Worker and about any requirements imposed by law or by any professional body, which must be satisfied if the Flexi-Worker is to fill the Assignment.
16.4 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 WTR, Health and Safety At Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999, Driving Legislation, by-laws, codes of practice and legal requirements to which the Hirer is ordinarily subject in respect of the Hirer’s own staff, including in particular the provision of adequate Employer’s and Public Liability Insurance cover for the Flexi-Worker during all Assignments.
16.5 The Hirer will indemnify and keep indemnified the Employment Business, in the event that any of the Hirer’s systems or processes result in the Hirer being in breach of the National Minimum Wage Regulations. In the event of any such breach, the Hirer will indemnify and keep indemnified the Employment Business in full, against all costs and awards, including litigation costs, arising from the breach.
16.6 The Hirer undertakes not to request the supply of a Flexi-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.
16.7 The Hirer shall indemnify and keep indemnified the Employment Business against any Losses incurred by the Employment Business 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 of the provisions of ITEPA or the NICs legislation (and/or any supporting or consequential secondary legislation relating thereto)) 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.
16.8 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.
16.9 If the Flexi-Worker brings, or threatens to bring, any AWR Claim, 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 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.
16.10 All disciplinary and grievance matters relating to the Flexi-Workers employed by the Employment Business shall be dealt with by the Employment Business. As soon as the Hirer is aware of any circumstances which give rise to any disciplinary action or grievance in respect of any such Flexi-Worker, the Hirer shall immediately refer the matter to the Employment Business for action to be taken.
16.11 The Employment Business shall indemnify the Hirer against any liability arising from a failure by the Employment Business to comply with its obligations contained within these Terms of Business except to the extent that the failure arises from a failure by the Hirer to comply with their obligations.
17 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, including by email.
18 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.
19 Rights Of Third Parties
None of the provisions of these Terms are intended to be for the benefit of or enforceable by third parties and the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.
20 Non-Solicitation
The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of six months from, the end of the term of contract, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any key executive of the other party who has worked on the services provided under the contract at any time during the term of the contract.
21 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.