Terms of Engagement
Terms of Engagement for Agency Workers
Parties
(1) Smart 1 Recruitment Limited of The Business Centre, Edward Street, Redditch, B97 6HA (Employment Business)
(2) ……………………………………………… of ...……………………………………………………………………………………………..
Insert name and address (Agency Worker)
Agreed terms
1.1 The definitions and rules of interpretation in this clause apply to this agreement.
Assignment: the temporary services to be carried out by the Agency Worker for the Client.
AWR 2010: the Agency Workers Regulations 2010.
Calendar Week: shall mean any period of 7 days starting with the first day of the Assignment.
Client: the person, firm, partnership, company or Group company (as the case may be) to whom the Agency Worker is Introduced or supplied.
Conduct Regulations 2003: the Conduct of Employment Agencies and Employment Business Regulations 2003.
Confidential Information: information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of the Client or the Employment Business for the time being confidential to the Client or the Employment Business and trade secrets including, without limitation, technical data and know-how relating to the business of the Client or the Employment Business or any of their suppliers, customers, agents, distributors, shareholders, management or business contacts, and including (but not limited to) information that the Agency Worker creates, develops, receives or obtains in connection with the Assignment, whether or not such information (if in anything other than oral form) is marked confidential.
Engage: the employment of an Agency Worker or the engagement directly or indirectly through any employment business other than through the Employment Business (whether for a definite or indefinite period) of an Agency Worker as a direct result of any Introduction or Assignment to the Client and the term Engaged shall be construed accordingly.
Introduce: the provision to the Client of information by the Employment Business by way of a curriculum vitae or in such format as the Client may from time to time require which identifies the Agency Worker and Introduction and Introduced shall be construed accordingly.
Introduction Fee: a fee payable by the Client to the Employment Business in the circumstances set out in clause 4.
Other Qualifying Period Payment: any remuneration payable to the Agency Worker (other than the Qualifying Period Rate of Pay), which is not excluded by virtue of regulation 6 of the AWR 2010, such as any overtime, shift premium, commission or any bonus, incentive or rewards which are directly attributable to the amount or quality of work done by an Agency Worker and are not linked to a financial participation scheme (as defined by the AWR 2010).
Qualifying Period: 12 continuous Calendar Weeks, as defined in regulation 7 of the AWR 2010, subject always to regulations 8 and 9 of the AWR 2010. Further details of the calculation of a Qualifying Period are available from the Employment Agency.
Qualifying Period Rate of Pay: the rate of pay that will be paid to the Agency Worker on completion of the Qualifying Period, if this rate is higher than the Rate of Pay.
Rate of Pay: the rate of pay that will be paid to the Agency Worker prior to completion of the Qualifying Period.
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 Client 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 Client having been supplied by the Employment Business or 14 weeks from the first day of the most recent Assignment where there has been a break of more than 6 weeks (42 days) since any previous assignment.
Relevant Terms and Conditions: the relevant terms and conditions that apply once the Agency Worker has completed the Qualifying Period.
Required Assignment Information: shall have the meaning set out at clause 3.3.
Temporary Work Agency: shall have the meaning set out in regulation 4(1) of the AWR 2010.
WTR 1998: the Working Time Regulations 1998.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.1 These terms set out the entire agreement between the Employment Business and the Agency Worker for the supply of services to the Client and shall govern all Assignments undertaken by the Agency Worker (including, for the avoidance of doubt, where the Agency Worker undertakes an Assignment without having signed these terms). No contract shall exist between the Employment Business and the Agency Worker between Assignments.
2.2 For the avoidance of doubt, this agreement constitutes a contract for services and not a contract of employment between the Employment Business and the Agency Worker or the Agency Worker and the Client.
2.3 For the purposes of the Conduct Regulations 2003, the Employment Business acts as an Employment Business in relation to the Introduction and supply of the Agency Worker to the Client.
3.1 The Employment Business will endeavour to obtain suitable Assignments for the Agency Worker. The Employment Business is not obliged to offer an Assignment to the Agency Worker and 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. The Agency Worker agrees that suitability of an Assignment shall be determined solely by the Employment Business and that the Employment Business shall incur no liability to the Agency Worker should it fail to offer Assignments to the Agency Worker.
3.3 Except as provided below, at the same time as an Assignment is offered to the Agency Worker, the Employment Business shall provide the Agency Worker with the following information (the Required Assignment Information):
(a) the identity of the Client, and if applicable the nature of its business;
(b) the date the Assignment is to commence and the duration or likely duration of the Assignment;
(c) the position which the Client seeks to fill, including the type of work the Agency Worker in that position would be required to do, the location at which, and the hours during which, the Agency Worker would be required to work;
(d) the Rate of Pay and any expenses payable by or to the Agency Worker;
(e) any risks to health and safety known to the Client in relation to the Assignment and the steps the Client has taken to prevent or control such risks; and
(f) the experience, training, qualifications and any authorisation which the Client considers are necessary or which are required by law or a professional body for the Agency Worker to possess in order to work in the Assignment.
3.4 Where the Required Assignment Information is not given in paper form or by electronic means, the Employment Business shall confirm it in writing or electronically as soon as possible and in any event no later than the end of the third working day following the day on which the Assignment was offered to the Agency Worker.
3.5 Unless the Agency Worker requests otherwise, the Required Assignment Information will not be supplied to the Agency Worker where they are being Introduced or supplied to the Client to work in the same position as one in which they have previously been supplied within the previous five working days and the Required Assignment Information (with the exception of the date or likely duration of the Assignment) is the same as that already given to the Agency Worker.
3.6 Where the Assignment is intended to last for five consecutive working days or less and the Required Assignment Information has previously been given to the Agency Worker and remains unchanged, the Employment Business shall only be required to provide written confirmation of the identity of the Client and the likely duration of the Assignment.
3.7 Where the Assignment was initially intended to last for five consecutive days or less but the Assignment extends beyond five consecutive days, the Employment Business shall provide the remaining Required Assignment Information to the Agency Worker in paper or electronic form within eight working days of the start of the Assignment or by the end of the Assignment, if sooner.
3.8 If the Agency Worker has completed the Qualifying Period on the start date of the relevant Assignment or completes the Qualifying Period during the relevant Assignment, the Agency Worker will be informed of the Qualifying Period Rate of Pay if different from the Rate of Pay, together with the Other Qualifying Period Payments and the other Relevant Terms and Conditions to which the Agency Worker is now entitled under the AWR 2010.
3.9 If the Agency Worker considers that they have not received the Relevant Terms and Conditions on completion of the Qualifying Period, they may raise this in writing with the Employment Business setting out as fully as possible the basis of their concerns. The Employment Business shall, within 28 days of receiving such request, provide the Agency Worker with a written statement setting out:
(a) relevant information relating to the basic work and employment conditions of the workers of the Client;
(b) the factors that the Employment Business considered when determining such basic work and employment conditions; and
(c) where the Employment Business seeks to rely on the defence in regulation 5(3) of the AWR 2010, relevant information which:
(i) explains the basis on which it is considered that an individual is a comparable employee; and
(ii) describes the basic work and employment conditions which apply to that employee.
4.1 The Agency Worker acknowledges that the Employment Business will be entitled to charge the Client the Introduction Fee where:
(a) the Client Engages the Agency Worker within the Relevant Period; or
(b) the Client introduces the Agency Worker to a third party (other than another employment business) who subsequently Engages the Agency Worker within the Relevant Period.
4.2 The Introduction Fee will not be payable in the circumstances described in clause 4.1(a) if the Client agrees to extend the period of the Assignment for a specified period at the end of which the Agency Worker may be Engaged by the Client without further charge.
5.1 The Agency Worker is not obliged to accept any Assignment offered by the Employment Business. If the Agency Worker does accept an Assignment, the Agency Worker shall:
(a) co-operate with the Client's reasonable instructions and accept the direction, supervision and control of any responsible person in the Client's organisation;
(b) observe any relevant rules and regulations of the Client's organisation (including normal hours of work) of which the Agency Worker has been informed or of which the Agency Worker should be reasonably aware;
(c) co-operate with the Employment Business in the completion and renewal of all mandatory checks, including in relation to the Agency Worker's right to work in the United Kingdom;
(d) take all reasonable steps to safeguard their own health and safety and that of any other person who may be present or be affected by their actions on the Assignment and comply with the health and safety policies of the Client;
(e) not engage in any conduct detrimental to the interests of the Employment Business or the Client;
(f) not at any time disclose or use (other than in the course of the Assignment) any Confidential Information;
(g) comply with all relevant statutes, laws, regulations and codes of practice from time to time in force in the performance of the Assignment and applicable to the Client's business, including without limitation, any equal opportunities or non-harassment policies.
5.2 If the Agency Worker accepts any Assignment offered by the Employment Business, as soon as possible before 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:
(a) inform the Employment Business of any Calendar Weeks (whether before the commencement of or during the relevant Assignment) in which the Agency Worker has worked in the same or a similar role with the Client via any third party;
(b) provide the Employment Business with all the details of such work, including (without limitation) details of when, where and the period(s) during which such work was undertaken, the role performed and any other details requested by the Employment Business; and
(c) inform the Employment Business if before the date of the commencement of the relevant Assignment the Agency Worker has:
(i) completed two or more assignments with the Client;
(ii) completed at least one assignment with the Client and one or more assignments with a member of the Client's Group; or
(iii) worked in more than two roles during an assignment with the Client and on at least two occasions has worked in a role that was not the same role as the previous role.
5.3 If the Agency Worker is unable for any reason to attend work during the course of an Assignment, they should inform the Client and Employment Business at least one hour before their normal start time to enable alternative arrangements to be made.
5.4 If, either before or during the course of an Assignment, the Agency Worker becomes aware of any reason why they may not be suitable for an Assignment, they shall notify the Employment Business without delay.
6.1 Subject to the Agency Worker’s time sheets being approved, the Employment Business shall pay the Rate of Pay to the Agency Worker until the Agency Worker completes the Qualifying Period.
6.2 Subject to the Agency Worker’s time sheets being approved, 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:
(a) the Qualifying Period Rate of Pay; and
(b) the Other Qualifying Period Payments.
which will be set out in writing.
6.3 Subject to any applicable statutory entitlement and to clause 8 and clause 9, the Agency Worker is not entitled to receive payment from the Employment Business or the Client for time not spent working on the Assignment, whether in respect of holidays, illness or absence for any other reason, unless otherwise agreed.
7.1 At the end of each week of an Assignment (or at the end of an Assignment if it is for a period of one week or less or is completed before the end of a week) the Client should deliver to the Employment Business a completed time sheet indicating the number of hours worked during the preceding week (or such lesser period). The Employment Business shall notify the Agency Worker of the hours for which they will be paid.
7.2 The Employment Business shall pay the Agency Worker for all hours worked on a weekly basis regardless of whether the Employment Business has received payment from the Client for those hours.
7.3 Where there is a dispute regarding the number of hours worked by the Agency Worker any payment due to the Agency Worker in respect of the disputed hours only may be delayed while the Employment Business investigates (in a timely fashion) what hours, if any, were worked by the Agency Worker. The Employment Business shall make no payment to the Agency Worker for hours not worked.
7.4 For the avoidance of doubt and for the purposes of the WTR 1998, the Agency Worker's working time shall only consist of those periods during which they are carrying out activities or duties for the Client as part of the Assignment. Time spent travelling to the Client's premises (with the exception of time spent travelling between two or more premises of the Client), lunch breaks and other rest breaks shall not count as part of the Agency Worker's working time for these purposes. This clause is subject to the Employment Business' obligations to provide the Agency Worker with the Relevant Terms and Conditions on completion of the Qualifying Period.
7.5 The Agency Worker acknowledges and accepts that it could be a criminal offence under the Fraud Act 2006 to falsify any time sheet, for example by claiming payment for hours that were not actually worked.
8.1 Subject to clause 8.2, the Agency Worker is entitled to the equivalent of 5.6 weeks' paid holiday during each holiday year (including all bank holiday entitlements). The Employment Business' holiday year runs between 6th April and 5th April. If an Assignment starts or finishes part way through the holiday year, the Agency Worker's holiday entitlement during that year shall be calculated on a pro-rata basis.
8.2 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 under clause 8.1. In those circumstances, the Employment Business will inform the Agency Worker of any such entitlement, the date from which such entitlement will commence and how payment for such entitlement accrues.
8.3 All entitlement to annual leave must be taken during the course of the holiday year in which it accrues. No untaken holiday can be carried forward to the next holiday year unless the Agency Worker has been prevented from taking it in the relevant holiday year by a period of sickness absence, in which case carry-over is limited to four weeks' holiday per year less any leave taken during the holiday year that has just ended. Any such carried over holiday which is not taken within eighteen months of the end of the relevant holiday year will be lost.
8.4 The Agency Worker should give at least twice the length of holiday as notice and this must be agreed by the Employment Business/Client in writing in advance. No more than 2 weeks' holiday may be taken at any one time unless prior consent is obtained from Employment Business/Client. The Employment Business may require the Agency Worker to take holiday on specific days, as notified to the Agency Worker.
8.5 Where a bank holiday or other public holiday falls during an Assignment and the Agency Worker ordinarily would work on that day, then subject to the Agency Worker having accrued entitlement for payment for leave, that day shall count as part of the Agency Worker's paid annual leave entitlement.
8.6 Where this contract is terminated by either party, the Agency Worker shall be entitled to be paid in lieu of accrued but untaken holiday for the holiday year in which termination takes place.
8.7 If the Agency Worker has taken more holiday than their accrued entitlement at the date of the termination of this contract, the Employment Business shall be entitled to deduct the appropriate amount from any payments due to the Agency Worker.
9.1 If the Agency Worker is absent from work for any reason, they must notify the Employment Business of the reason for their absence as soon as possible but no later than one hour before their usual start time on the first day of absence.
9.2 If the Agency Worker satisfies the qualifying conditions laid down by law, they may be entitled to receive Statutory Sick Pay (SSP) at the prevailing rate in respect of any period of sickness or injury during the Assignment. The Agency Worker will not be entitled to any other payments during such period.
9.3 In all cases of absence, a self-certification form, which is available from the Employment Business, must be completed on the Agency Worker's return to work and supplied to the Employment Business. For any period of incapacity due to sickness or injury which lasts for seven consecutive days or more, a doctor's certificate (a "statement of fitness for work") stating the reason for absence must be obtained at the Agency Worker's own cost and supplied to the Employment Business. Further certificates must be obtained if the absence continues for longer than the period of the original certificate. If the Agency Worker is certified as "may be fit for work" the Employment Business, the Agency Worker and the Client will discuss any additional measures that may be needed to facilitate the Agency Worker's return to work. If appropriate measures cannot be taken, the Agency Worker will remain on sick leave and the Employment Business will set a date to review the situation.
10.1 The Employment Business, the Client or the Agency Worker may terminate the Assignment at any time without prior notice or liability.
10.2 The Agency Worker acknowledges that the continuation of an Assignment is subject to and dependent on the continuation of the agreement entered into between the Employment Business and the Client. If that agreement is terminated for any reason, the Assignment shall cease with immediate effect without liability to the Agency Worker, except for payment for work done up to the date of termination of the Assignment.
10.3 Unless exceptional circumstances apply, the Agency Worker's failure to inform the Client or the Employment Business of their inability to attend work as required by clause 5.3 will be treated as termination of the Assignment by the Agency Worker.
10.4 If the Agency Worker is absent during the course of an Assignment and the Assignment has not otherwise been terminated, the Employment Business will be entitled to terminate the Assignment in accordance with clause 10.1 if the work to which the Agency Worker was assigned is no longer available.
11 Intellectual property rights
The Agency Worker acknowledges that all Intellectual Property Rights deriving from services carried out by the Agency Worker for the Client during the Assignment shall belong to the Client. Accordingly, the Agency Worker shall execute all such documents and do all such acts as the Employment Business or Client shall from time to time require in order to give effect to the Client's rights pursuant to this clause.
12.1 In order to protect the confidentiality and trade secrets of the Employment Business and the Client, the Agency Worker agrees not at any time:
(a) whether during or after an Assignment (unless expressly so authorised by the Client or the Employment Business as a necessary part of the performance of their duties), to disclose to any person or to make use of any of the trade secrets or the Confidential Information of the Client or the Employment Business; or
(b) to make any copy, abstract or summary of the whole or any part of any document or other material belonging to the Client or the Employment Business except when required to do so in the course of the Agency Worker's duties under an Assignment, in which circumstances such copy abstract or summary would belong to the Client or the Employment Business, as appropriate.
12.2 The restriction in clause 12.1 does not apply to:
(a) any use or disclosure authorised by the Client or the Employment Business or as required by law a court of competent jurisdiction or any governmental or regulatory authority;
(b) any information which is already in, or comes into, the public domain otherwise than through the Agency Worker's unauthorised disclosure; or
(c) the making of a protected disclosure within the meaning of section 43A of the Employment Rights Act 1996.
12.3 At the end of each Assignment or on request the Agency Worker agrees to deliver up to the Client or the Employment Business (as directed) all documents (including copies), ID cards, swipe cards, equipment, passwords, pass codes and other materials belonging to the Client which are in its possession, including any data produced, maintained or stored on the Client's computer systems or other electronic equipment.
13.1 The Employment Business and the Client will collect and process information relating to the Agency Worker in accordance with the privacy notice which is available from the Employment Business.
13.2 The Agency Worker shall comply with the privacy standard or data protection policy of both the Employment Business and the Client when handling personal data including personal data relating to any employee, worker, contractor, customer, client, supplier or agent of the Employment Business or Client. The Agency Worker will also comply with all relevant polices of both the Employment Business and the Client.
13.3 Failure to comply with the privacy standard or data protection policy and/or any other policy of the Employment Business or Client may be dealt with under the Employment Business' or the Client's disciplinary procedure and, in serious cases, may be treated as gross misconduct leading to summary dismissal, notwithstanding that the Agency Worker will not be considered to be an employee of the Employment Business or the Client.
The Employment Business will comply with its auto-enrolment obligations (if any) as required by the Pensions Act 2008 and associated legislation.
15.1 The Agency Worker warrants that:
(a) the information supplied to the Employment Business in any application documents is correct;
(b) the Agency Worker has the experience, training, qualifications and any authorisation which the Client considers are necessary or which are required by law or by any professional body for the Agency Worker to possess in order to perform the Assignment;
(c) the Agency Worker is not prevented by any other agreement, arrangement, restriction (including, without limitation, a restriction in favour of any employment agency, employment business or client) or any other reason, from fulfilling the Agency Worker's obligations under this agreement; and
(d) the Agency Worker has valid and subsisting leave to enter and remain in the United Kingdom for the duration of this agreement and is not (in relation to such leave) subject to any conditions which may preclude or have an adverse effect on the Assignment.
16.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
16.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
17.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
17.3 No variation of this agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives). A written copy of the varied terms, including the date from which they take effect, shall be given to the Agency Worker no later than the fifth working day on which the variation was agreed.
17.4 Nothing in this clause shall limit or exclude any liability for fraud.
17.5 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No one other than a party to this agreement shall have any right to enforce any of its terms.
19.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by fax to its main fax number.
19.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting or at the time recorded by the delivery service.
19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
20.2 If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims)
Signed by the Agency Worker
(print name here)
Date:
Signed on behalf of Smart 1 Recruitment Limited
(print name here)
Date:
48 Hour Opt-Out Agreement
The Working Time Regulations (1998): Opt-out of average 48 hour working week
Under the Working Time Regulations (1998) certain individuals cannot be obliged to work more than 48 hours a week, including overtime, on average. However, individuals may opt-out from the application of this limit if they wish to.
If you agree to exclude the limit now, you may change your mind and withdraw your agreement by giving us three months’ notice in writing. We also reserve the right to end the opt-out by giving you three months’ notice in writing.
If you agree to opt-out, please indicate this indicate this by signing and dating the agreement below.
Agreement to opt-out from the working time limit under the Working Time Regulations (1998):
I have read the above and have decided to opt-out from the limit on working time contained in the Working Time Regulations (1998). Accordingly, I agree that my working time may exceed an average of 48 hours for each 7 days.
My agreement to this shall have effect immediately and shall continue indefinitely. However, I reserve the right to change my mind and end my opt-out by giving Smart 1 Recruitment Ltd three months’ notice in writing. I agree the Smart 1 Recruitment Ltd may also end my opt-out by giving me three months’ notice in writing.
Full Name: __________________________________________________________________
Signed: __________________________________________________________________
Date: _____________________________________________________________________