1.DEFINITIONS AND INTERPRETATION
1.1. In these Terms the following definitions apply:
| “Actual Rate of Pay” | means, unless and until the Agency Worker has completed the Qualifying Period, the rate of pay which will be paid for each hour worked during an Assignment (to the nearest quarter hour) weekly in arrears, subject to Deductions and any Agreed Deductions, as set out in the relevant Assignment Details Form; |
| “Actual QP Rate of Pay” | means the rate of pay which will be paid to the Agency Worker if and when s/he completes the Qualifying Period. Such rate will be paid for each hour worked during an Assignment (to the nearest quarter hour) weekly in arrears, subject to Deductions and any Agreed Deductions, as set out in any variation to the relevant Assignment Details Form; |
| “Agency Worker” | means you, the person named above in the section completed and titled Name, supplied by the Employment Business to provide services to the Hirer; |
| “Agency Workers Regulations” | means the Agency Workers Regulations 2010; |
| “Agreed Deductions” | means any deductions the Agency Worker has agreed can be made from their pay; |
| “Assignment” | means assignment services to be performed by the Agency Worker for the Hirer for a period of time during which the Agency 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 to be given to the Agency Worker upon acceptance of the Assignment; |
| “calendar Week” | means any period of 7 days starting with the same day as the first day of the First Assignment; |
| “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 Agency 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 Protection Laws” | means the Data Protection Act 1998, 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; |
| “Deductions” | means any deductions which the Employment Business may be required by law to make and in particular in respect of PAYE pursuant to Sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003 and Class 1 National Insurance Contributions; |
| “Emoluments” | means any pay in addition to the Actual QP Rate of Pay; |
| “Employment Business” | means MK Personnel Solutions Limited (Company Registered No. 03296899) whose registered office address is Collingham House , 6-12 Gladstone Road , Wimbledon , SW19 7QT ; |
| “Engagement” | means the engagement, employment or use of the Agency Worker by the Hirer or any third party to whom the Agency Worker has been introduced by the Hirer, on a permanent or temporary basis, whether under a contract of service or for services, and/or through a company of which the Agency 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:
|
| “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 Agency Worker is supplied or 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; |
| “Hourly Rate” | means the National Minimum Wage rate or National Living Wage rate applicable, this being the minimum rate of pay that the Employment Business reasonably expects to achieve, for all hours worked by the Agency Worker; |
| “Leave Year” | means the period during which the Agency Worker accrues and may take statutory leave which runs from 1st January to 31st December; |
| “Period of Extended Hire” | means any additional period that the Hirer wishes the Agency 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 Agency 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 the Schedule to these Terms; |
| “Relevant Period” | means (a) the period of 8 weeks commencing on the day after the last day on which the Agency Worker worked for the Hirer having been supplied by the Employment Business; or (b) the period of 14 weeks commencing on the first day on which the Agency Worker worked for the Hirer having been supplied by 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; |
| “Temporary Work Agency” | means as defined in the Schedule to these Terms; |
| “Terms” | means these terms of engagement together with any applicable Assignment Details Form; |
| “Transfer Fee” | means the fee payable by the Hirer to the Employment Business in accordance with Clause 3.7 as permitted by Regulation 10 of the Conduct Regulations; |
| “Type of Work” | means the type of work we expect to place you in, best matching your chosen area/s of interest where possible but not exclusively. |
| “Working Time Regulations” | means the Working Time Regulations 1998 and working time as defined under the Road Transport (Working Time) Regulations 2005, namely time consisting of those periods during which the Agency Worker is at their workstation at the disposal of the Hirer and exercising his/her functions or activities and that such period of time are devoted to road transport activities such as driving, loading and unloading, assisting passengers boarding the vehicle, cleaning and maintenance of the vehicle, cargo and passengers or to fulfil the legal or regulatory obligations directly linked to the specific transport operations; |
| “Periods of Availability” | means periods of waiting time as defined under the Road Transport (Working Time) Regulations 2005, namely periods of waiting time whose duration is known about in advance by the Agency Worker. Such periods of time consist of time spent when the Agency Worker is not required to remain at his/her workstation, but must be available to answer call to start or resume driving or other work on request, and the period and the foreseeable duration is known in advance by the mobile worker, either before departure or just before the start of availability in question; |
| “Mobile Worker” | means any worker forming part of the travelling staff who is in the service of an undertaking, which operates road transport services for passengers or the movement of goods; and |
| “EU Drivers Hours Rules” | means Community Drivers’ Hours Regulations (38/20/85/EEC) |
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 entire agreement between the Employment Business and the Agency Worker for the supply of services to the Hirer and they shall govern all Assignments undertaken by the Agency Worker. However, no contract shall exist between the Employment Business and the Agency Worker between Assignments. These Terms shall prevail over any other terms put forward by the Agency Worker.
2.2. During an Assignment the Agency Worker will be engaged on a contract for services by the Employment Business on these Terms. For the avoidance of doubt, the Agency Worker is not an employee of the Employment Business although the Employment Business is required to make the Deductions from the Agency Worker’s pay. These Terms shall not give rise to a contract of employment between the Employment Business and the Agency Worker, or the Agency Worker and the Hirer. The Agency Worker is supplied as a worker, and is entitled to certain statutory rights as such, but nothing in these Terms shall be construed as giving the Agency Worker rights in addition to those provided by statute except where expressly stated.
2.3. No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between the Employment Business and the Agency Worker and set out in writing and a copy of the varied terms is given to the Agency Worker no later than 5 business days following the day on which the variation was made 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 or supplying the Agency Worker for Assignments with its Hirers.
3. ASSIGNMENTS AND INFORMATION TO BE PROVIDED
3.1. The Employment Business will endeavour to obtain suitable Assignments for the Agency Worker to perform the agreed Type of Work. The Agency Worker shall not be obliged to accept any Assignment offered by the Employment Business.
3.2. The Agency Worker acknowledges that the nature of temporary work means that there may be periods when no suitable work is available and agrees that:
3.2.1. the suitability of the work to be offered shall be determined solely by the Employment Business; and
3.2.2. the Employment Business shall incur no liability to the Agency Worker should it fail to offer Assignments of the Type of Work or any other work.
3.3. At the same time as an Assignment is offered to the Agency Worker the Employment Business shall provide the Agency Worker with an Assignment Details Form setting out the following:
3.3.1. the identity of the Hirer, and if applicable the nature of their business;
3.3.2. the date the Assignment is to commence and the duration or likely duration of Assignment;
3.3.3. the Type of Work, location and hours during which the Agency Worker would be required to work;
3.3.4. the Hourly Rate that will be paid and any expenses payable by or to the Agency Worker;
3.3.5. any risks to health and safety known to the Hirer in relation to the Assignment and the steps the Hirer has taken to prevent or control such risks; and
3.3.6. what experience, training, qualifications and any authorisation required by law or a professional body the Hirer considers necessary or which are required by law to work in the Assignment.
3.4. 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
3.4.1. the Agency Worker is being offered an Assignment in the same position as one in which the Agency Worker has previously been supplied within the previous 5 business days and such information has already been given to the Agency Worker and remains unchanged; or
3.4.2. subject to clause 3.5, the Assignment is intended to last for 5 consecutive business days or less and such information has previously been given to the Agency Worker before and remains unchanged, the Employment Business needs only to provide written confirmation of the identity of the Hirer and the likely duration of the Assignment.
3.5. Where the provisions of clause 3.4.2 are met but the Assignment extends beyond the intended 5 consecutive business day period, the Employment Business shall provide such information set out in clause 3.3 to the Agency Worker in paper or electronic form within 8 days of the start of the Assignment.
3.6. 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, the start date for the relevant averaging period shall be the date on which the Agency Worker commences the first Assignment.
3.7. If, before or during an Assignment or during the Relevant Period the Hirer wishes to engage the Agency Worker directly or through another employment business, the Agency Worker acknowledges that the Employment Business will be entitled to charge the Hirer a Transfer Fee or to agree a period of Extended Hire with the Client at the end of which the Agency Worker may be Engaged directly by the Hirer or through another employment business without further charge to the Hirer. In addition, the Employment Business will be entitled to charge a Transfer Fee to the Hirer if the Hirer introduces the Agency Worker to a third party who subsequently Engages the Agency Worker directly or indirectly, before or during an Assignment or within the Relevant Period.
3.8. If the Agency Worker has completed the Qualifying Period on the start date of the relevant Assignment or following completion of the Qualifying Period during the relevant Assignment, and if the Agency Worker is entitled to any terms and conditions relating to the duration of working time, night work, rest periods and/or rest breaks under the Agency Workers Regulations which are different and preferential to rights and entitlements relating to the same under the Working Time Regulations, any such terms and conditions will be as set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form (as appropriate).
3.9. If the Agency Worker considers that s/he has not or may not have received equal treatment under the Agency Workers Regulations, the Agency Worker may raise this in writing with the Employment Business setting out as fully as possible the basis of his/her concerns.
3.10. Agency Workers who are mobile workers working in operations not subject to EU Drivers Hours Rules and Agency Workers who are not mobile workers will be subject to the Working Time Regulations 1998 (as amended). In order to calculate the average number of weekly hours worked on an assignment by such workers, the start date for the relevant averaging period under the Working Time Regulations 1998 (as amended) shall be the date on which the Agency Worker commences the first Assignment.
3.11. Agency Workers who are mobile workers in operations that are subject to EU Drivers Hours Rules will be subject to the Road Transport (Working Time) Regulations 2005. For the avoidance of doubt, the relevant reference period to calculate average Working Time used by the Employment Business will be a 17 week reference period as specified in the Road Transport (Working Time) Regulations 2005. In certain circumstances, this reference period may be changed to a rolling 17-week reference period, in which case the Employment Business maybe increased to 26 weeks if the Agency Worker enters into a valid collective or workforce agreement with the Employment Business.
4. AGENCY WORKER’S OBLIGATIONS
4.1. The Agency Worker is not obliged to accept any Assignment offered by the Employment Business but if the Agency Worker does accept an Assignment, during every Assignment and afterwards where appropriate, s/he will:
4.1.1. co-operate with the Hirer’s reasonable instructions and accept the direction, supervision and control of any responsible person in the Hirer’s organisation;
4.1.2. observe any relevant rules and regulations of the Hirer’s establishment (including normal hours of work) to which attention has been drawn or which the Agency Worker might reasonably be expected to ascertain;
4.1.3. take all reasonable steps to safeguard his or her own health and safety and that of any other person who may be present or be affected by his or her actions on the Assignment and comply with the Health and Safety policies and procedures of the Hirer;
4.1.4. not engage in any conduct detrimental to the interests of the Employment Business and/ or Hirer which includes any conduct which could bring the Employment Business and/or the Hirer into disrepute and/or which results in the loss of custom or business by either the Employment Business or the Hirer;
4.1.5. not commit any act or omission constituting unlawful discrimination against or harassment of any member of the Employment Business’ or the Hirer’s staff;
4.1.6. not at any time divulge to any person, nor use for his or her own or any other person’s benefit, any Confidential Information relating to the Hirer’s or the Employment Business’ employees, business affairs, transactions or finances;
4.1.7. on completion of the Assignment or at any time when requested by the Hirer or the Employment Business, return to the Hirer or where appropriate, to the Employment Business, any Hirer property or items provided to the Agency Worker in connection with or for the purpose of the Assignment, including, but not limited to any equipment, materials, documents, swipe cards or ID cards, uniforms, personal protective equipment or clothing.
4.2. If the Agency Worker accepts any Assignment offered by the Employment Business, as soon as possible prior to the commencement of each such Assignment and during each Assignment (as appropriate) and at any time at the Employment Business’ request, the Agency Worker undertakes to:
4.2.1. inform the Employment Business of any Calendar Weeks between 1 October 2011 and prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment in which the Agency Worker has worked in the same or a similar role with the relevant Hirer via any third party and which the Agency Worker believes count or may count toward the Qualifying Period;
4.2.2. 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; and
4.2.3. inform the Employment Business if, since 1 October 2011 s/he has prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment:
4.2.3.1. completed two or more assignments with the Hirer
4.2.3.2. completed at least one assignment with the Hirer and one or more earlier assignments with any member of the Hirer’s Group; and/or
4.2.3.3. 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.
4.3. If the Agency Worker is unable for any reason to attend work during the course of an Assignment s/he should inform the Employment Business within 1 hour of the commencement of the Assignment or shift. In the event that it is not possible to inform the Employment Business within these timescales, the Agency Worker should alternatively inform the Hirer and then the Employment Business as soon as possible.
4.4. If, either before or during the course of an Assignment, the Agency Worker becomes aware of any reason why s/he may not be suitable for an Assignment, s/he shall notify the Employment Business without delay.
4.5. The Agency Worker acknowledges that any breach of his/her obligations set out in this clause may cause the Employment Business to suffer loss and that the Employment Business reserves the right to recover such losses from the Agency Worker.
4.6. Take all reasonable steps to comply with the Road Transport (Working Time) Regulations 2005.
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 or is completed before the end of a week) the Agency Worker shall deliver to the Employment Business a timesheet duly completed to indicate the number of hours worked during the preceding week (or such lesser period) and signed by an authorised representative of the Hirer.
5.2. Subject to clause 5.3 the Employment Business shall pay the Agency Worker for all hours worked regardless of whether the Employment Business has received payment from the Hirer for those hours.
5.3. Where the Agency Worker fails to submit a properly authenticated timesheet the Employment Business shall, in a timely fashion, conduct further investigations into the hours claimed by the Agency Worker and the reasons that the Hirer has refused to sign a timesheet in respect of those hours. This may delay any payment due to the Agency Worker. The Employment Business shall make no payment to the Agency Worker for hours not worked.
5.4. For the avoidance of doubt and for the purposes of the Working Time Regulations, the Agency Worker’s working time shall only consist of those periods during which s/he is carrying out activities or duties for the Hirer as part of the Assignment. Time spent travelling to the Hirer’s premises (apart from time spent travelling between two or more premises of the Hirer), lunch breaks and other rest breaks shall not count as part of the Agency Worker’s working time for these purposes. This clause 5.4 is subject to any variation set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form which the Employment Business may make for the purpose of compliance with the Agency Workers Regulations.
5.5. Agency Workers who are mobile workers working in operation not subject to EU Drivers Hours Rules and Agency Workers who are not mobile workers will be subject to the Working Time Regulations 1998 (as amended). Such Agency Workers’ working time shall only consist of those periods during which s/he is carrying out activities or duties for the Hirer as part of the Assignment. Time spent travelling to Hirer’s premises; lunch breaks and other than rest breaks shall not count as part of the Agency Worker’s working time for these purposes. This clause 5.5 is subject to any variation set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form which the Employment Business may make for the purpose of compliance with the Agency Workers Regulations.
6. REMUNERATION
6.1. The Employment Business shall pay to the Agency Worker the Actual Rate of Pay unless and until the Agency Worker completes the Qualifying Period. The Actual Rate of Pay will be notified on a per Assignment basis and as set out in the relevant Assignment Details Form.
6.2. If the Agency Worker has completed the Qualifying Period on the start date of the relevant Assignment or following completion of the Qualifying Period during the relevant Assignment, the Employment Business shall pay to the Agency Worker:
6.2.1. the Actual QP Rate of Pay; and
6.2.2. the Emoluments (if any), which will be notified on a per Assignment basis and as set out in the relevant Assignment Details Form or any variation to the relevant Assignment details Form.
6.3. Subject to any statutory entitlement under the relevant legislation referred to in clauses 7 and 8 below and any other statutory entitlement, the Agency Worker is not entitled to receive payment from the Employment Business or the Hirer for time not spent on Assignment, whether in respect of holidays, illness or absence for any other reason unless otherwise agreed.
6.4. If the Agency Worker has completed the Qualifying Period on the start date of the relevant Assignment or following completion of the Qualifying Period during the relevant Assignment, the Agency Worker may be entitled to receive a bonus. The Agency Worker will comply with any requirements of the Employment Business and/or the Hirer relating to the assessment of the Agency Worker’s performance for the purpose of determining whether or not the Agency Worker is entitled to a bonus and the amount of any such bonus. If, subject to satisfying the relevant assessment criteria, the Agency Worker is entitled to receive a bonus, the Employment Business will pay the bonus to the Agency Worker.
6.5. Where the Agency Worker holds a valid A1, E101 or E102 Certificate confirming coverage by a social security scheme in a Member State other than the UK, the Agency Worker must declare this to the Employment Business and produce the Certificate. In such cases the Employment Business shall not deduct Class 1 National Insurance Contributions from the Actual Rate of Pay or the Actual QP Rate of Pay (where applicable) but it shall be the responsibility of the Agency Worker to pay such social fee contributions as may be applicable in the Member State concerned. In the event that the Agency Worker fails to pay such contributions and the Employment Business is required to pay contributions either in the UK or the Member State concerned, the Agency Worker undertakes to indemnify the Employment Business and the Employment Business shall be entitled to deduct the amount paid in contributions from any sums owed to the Agency Worker.
7. ANNUAL LEAVE
For the purposes of calculating entitlement to paid annual leave pursuant to the Working Time Regulations 1998, the leave year commences on 1st January. The holiday leave year runs from 1st January to 31st December.
7.1. The Agency Worker is entitled to paid annual leave according to the statutory minimum as provided by the Working Time Regulations from time to time. The current statutory entitlement to paid annual leave under the Working Time Regulations is 5.6 weeks.
7.2. Entitlement to payment for leave under clause 7.1 accrues in proportion to the amount of time worked by the Agency Worker on Assignment during the Leave Year.
7.3. Under the Agency Workers Regulations, on completion of the Qualifying Period the Agency Worker may be entitled to paid and/or unpaid annual leave in addition to the Agency Worker’s entitlement to paid annual leave under the Working Time Regulations and in accordance with clauses 7.1 and 7.2. If this is the case, any such entitlement(s), the date from which any such entitlement(s) will commence and how payment for such entitlement(s) accrues will be as set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form.
7.4. All entitlement to leave must be taken during the course of the Leave Year in which it accrues and, save as may be set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form, 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.
7.5. If the Agency Worker wishes to take paid leave during the course of an Assignment s/he should notify the Employment Business of the dates of his/her intended absence giving notice of at least twice the length of the period of leave that s/he wishes to take. In certain circumstances the Employment Business 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. Where the Agency Worker has given notice of a request to take paid annual leave in accordance with this clause, the Employment Business 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 Employment Business 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.
7.6. Subject to clause 7.3, the amount of payment which the Agency Worker will receive in respect of periods of annual leave taken during the course of an Assignment will be calculated in accordance with and paid in proportion to the number of Standard hours set out in the Assignment Schedule.
7.7. Subject to clause 7.3, 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.
7.8 Save where this clause is amended by the Assignment Details Form, where a bank holiday or other public holiday falls during an Assignment and the Agency Worker does not work on that day, then subject to the Agency Worker having accrued entitlement to payment for leave in accordance with clause 7.2 or clause 7.3 (if applicable), that day shall count as part of the Agency Worker’s paid annual leave entitlement.
7.9 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 in accordance with clause 7 at the date of termination.
8. SICKNESS ABSENCE
8.1. The Agency Worker may be eligible for Statutory Sick Pay provided that s/he meets the relevant statutory criteria.
8.2. The Agency Worker is required to provide the Employment Business 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 Fit Note thereafter.
8.3. For the purposes of the Statutory Sick Pay scheme there is one qualifying day per week during the course of an Assignment and that qualifying day shall be the Wednesday in every week. Therefore, if an Agency Worker works on an intermittent basis, with no regular pattern of work, then the Agency Worker must be absent on 4 consecutive Wednesdays in order to qualify for SSP.
8.4. In the event that the Agency Worker submits a Statement of Fitness for Work (“the Statement”) or similar medical evidence, which indicates that the Agency Worker may, subject to certain conditions, be fit to work/return to work, the Employment Business 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 Employment Business 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.
8.5. Where clause 8.4 applies, 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 Details Form to accommodate any conditions identified in the Statement or other similar medical evidence as is appropriate.
9. TERMINATION
9.1. Any of the Employment Business, the Agency Worker or the Hirer may terminate the Agency Worker’s Assignment at any time without prior notice or liability.
9.2. The Agency Worker acknowledges that the continuation of an Assignment is subject to and conditioned by the continuation of the contract entered into between the Employment Business and the Hirer. In the event that the contract between the Employment Business and the Hirer is terminated for any reason the Assignment shall cease with immediate effect without liability to the Agency Worker (save for payment for hours worked by the Agency Worker up to the date of termination of the Assignment).
9.3. If the Agency Worker does not inform the Hirer or the Employment Business that they are unable to attend work during the course of an Assignment (as required in clause 4.3) this will be treated as termination of the Assignment by the Agency Worker in accordance with clause 9.1, unless the Agency Worker can show that exceptional circumstances prevented him or her from complying with clause 4.3.
9.4. If the Agency Worker is absent during the course of an Assignment and the Assignment has not been otherwise terminated under clauses 9.1 or 9.3 above the Employment Business will be entitled to terminate the Assignment in accordance with clause 9.1 if the work to which the Agency Worker was assigned is no longer available.
9.5. If the Agency Worker does not report to the Employment Business to notify his/her availability for work for a period of 3 weeks, the Employment Business will forward his/her P45 to his/her last known address.
10. WORKPLACE PENSION
10.1 The Employment Business’s staging date is 1st August 2013. The Employment Business has postponed the date for automatic enrolment for eligible Agency Workers to be enrolled to 1st October 2013.
10.2 The Employment Business has chosen to offer NEST (www.nestpensions.org.uk) as its workplace pension scheme to meet its employer duties.
10.3 The Agency Workers will be automatically enrolled if on the 1st October 2013 they are
- aged at least 22 but under State Pension age
- working, or if you ordinarily work, in the UK
- earning more than £9,440
- not already a member of a qualifying workplace pension scheme
10.4 The Agency Worker can choose to opt in to NEST if they are:
- not already a member of an existing qualifying workplace pension scheme
- aged at least 16 but under 75
- earning more than £5,668
- working, or if you ordinarily work, in the UK.
10.5 The Agency Worker has the right to opt out of the workplace pension by contacting NEST direct on 0300 020 0090 (lines open between 8.00 a.m. and 8.00 p.m. Monday to Sunday. If the Agency Worker opts out within one month of being automatically enrolled, they will have their contribution refunded. If the opt out takes place after one month, the contributions will be held in a pot. The Agency Worker can opt back into the workplace pension scheme once in every 12 months.
10.6 The Employment Business will pay a minimum employer contribution of 1% on each eligible Agency Worker’s band of qualifying earnings and collect and pay over the Agency Worker’s contribution which will also be phased in gradually until it reaches its maximum in 2018.
11. GRIEVANCE
If an Agency Worker has a problem or concern about their Assignment or working conditions, they should aim to settle their grievance with the Consultant of the Employment Business responsible for that Assignment. If an Agency Worker’s grievance cannot be settled informally, or a formal approach is preferable, the Agency Worker should raise it formally with the Managing Director of the Employment Business as follows:
11.1. Written Statement – The Agency Worker must set out their grievance in writing and send this statement to the Director of the Employment Business.
11.2. Meeting – The Employment Business will invite the Agency Worker to attend a meeting to discuss the grievance once the Employment Business has had a reasonably opportunity to consider its response to that information. After the meeting, the Employment Business will invite the Agency Worker of its decision and work towards rectifying the issues raised where practicable.
12. INTELLECTUAL PROPERTY RIGHTS
The Agency Worker acknowledges that all copyright, trademarks, patents and other intellectual property rights deriving from services carried out by him. /her for the Hirer during the Assignment shall belong to the Hirer. Accordingly, the Agency Worker shall execute all such documents and do all such acts as the Employment Business shall from time to time require in order to give effect to its rights pursuant to this clause.
13. CONFIDENTIALITY
13.1. In order to protect the confidentiality and trade secrets of any Hirer and the Employment Business and without prejudice to every other duty to keep secret all information given to it or gained in confidence the Agency Worker agrees as follows:
13.1.1. Not at any time, whether during or after an Assignment (unless expressly so authorised by the Hirer or the Employment Business as a necessary part of the performance of its duties) to disclose to any person or to make use of any of the trade secrets or the Confidential Information of the Hirer or the Employment Business with the exception of information already in the public domain;
13.1.2. To deliver up to the Hirer or the Employment Business (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 him/her during the course of the Assignment; and
13.1.3. Not at any time to make any copy, abstract, summary or précis of the whole or any part of any document or other material belonging to the Hirer except when required to do so in the course of its duties under an Assignment in which event any such item shall belong to the Hirer or the Employment Business as appropriate.
14. GDPR
14.1. The Agency Worker warrants that in relation to these Terms, s/he shall comply with all provisions applicable to him/her under the General Data Protection Regulations and shall not do or permit to be done anything which might cause the Employment Business or the Hirer to breach any General Data Protection Regulations.
14.2. The Agency Worker consents to the Employment Business, any other intermediary involved in supplying the services of the Agency Worker to the Hirer (now or in the future), and the Hirer;
14.2.1. Processing his/her personal data for purposes connected with the performance of the Assignment and pursuant to these Terms; and
14.2.2. Exporting and/or processing his/her personal data in jurisdictions outside the European Economic Area for purposes connected with the performance of these Terms.
15. 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.
16. 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.
17. GOVERNING LAW & JURISDICTION
These Terms are governed by the laws of England & Wales and are subject to the exclusive jurisdiction of the Courts of England and Wales.
