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1. DEFINITIONS AND INTERPRETATION
1.1 In these terms of Engagement, the following definitions apply; -
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 exactment 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 of these Terms shall be valid unless 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 & 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 to the Agency Worker.
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 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 Actual Rate of Pay 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;
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; and
3.3.7 the intervals of payment
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 (exc Sat, Sun and any public or bank holiday) following save where; -
3.4.2 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 either to charge the Hirer a Transfer Fee or to agree a Period of Extended Hire with the Hirer 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 (other than another employment business) 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 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.
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 & Safety policies and procedures of the Hirer;
4.1.4 not engage in any conduct detrimental to the interest of the Employment Business and/or Hirer which includes 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 protection 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 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 s/he 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 toward the Qualifying Period for the relevant Assignment in accordance with Regulation 9 of the AWR because s/he has;
22.214.171.124 completed 2 or more assignments with the Hirer;
126.96.36.199 completed at least 1 assignment with the Hirer and 1 or more earlier assignments with any member of the Hirer’s Group; and/or
188.8.131.52 worked in more than 2 roles during an assignment with the Hirer and on at least 2 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 warrants that in relation to these Terms, s/he shall comply strictly with all provisions applicable to him/her under the Data Protection Laws and shall not do or permit to be done anything which might cause the Employment Business or the Hirer to breach any Data Protection Laws.
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 authorized 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 WTR, 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 periods 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 AWR.
6. PAY & DEDUCTIONS
6.1 For each Assignment the Employment Business shall pay to the Agency Worker the Hourly Rate. The Actual Rate of Pay will be notified on a per Assignment basis and set out in the relevant Assignment Details Form.
6.2 If the Agency Worker has completed the Qualifying Period on the start of the relevant Assignment or following completion of the Qualifying Period during the relevant assignment, the Employment Business shall pay to the Agency Worker the actual QP Rate of Pay which will be notified on a per Assignment basis and set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form.
6.3 The Hourly Rate, Actual Pay of Rate or Actual QP Rate of Pay, as applicable, will be paid weekly in arrears, subject to any Deductions and or Agreed Deductions, together with any agreed Emoluments.
6.4 Subject to any statutory entitlement under the relevant legislation referred to in clauses 7 (Annual Leave) and 8 (Sickness Absence) 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 Assignments, whether in respect of holidays, illness or absence for any other reason unless otherwise agreed.
6.5 Subject to compliance with Regulation 12 of the Conduct Regulations the Employment Business reserves the right in its absolute discretion to deduct from the Agency Worker’s pay any sums which s/he may owe the Employment Business including, without limitation, any overpayments or loans made to the Agency Worker by the Employment Business or any losses suffered by the Employment Business as a result of his/her negligence or breach of either the Employment Business’s or the Hirer’s rules.
6.6 If the Employment Business provides any equipment or clothing to the Agency Worker to be used in the course of an Assignment with the Hirer, the Agency Worker must take reasonable care of the equipment or clothing. Furthermore, the Agency Worker must return any equipment or clothing to the Employment Business upon termination of the Terms or within 3 days of a request from the Employment Business. In the event that the Agency Worker does not comply with the obligations set out in this clause, the Employment Business reserves the right to deduct the cost of replacement equipment or clothing from any sums owed to the Agency Worker. The question of whether the Agency Worker has taken reasonable care of the equipment or clothing will be solely assessed by the Employment Business’s reasonable judgement.
7. ANNUAL LEAVE
7.1 The Agency Worker is entitled to paid annual leave according to the statutory minimum as provided by the WTR from time to time. The current statutory entitlement to paid annual leave under the WTR 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 AWR, 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 WTR 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 annual 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 annual 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 annual 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 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 hours which the Agency Worker has worked on assignment. Payments for annual leave will be calculated on the basis of rates paid during the Hirer’s normal working hours i.e. those which do not attract overtime rates of pay.
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 these Terms are terminated by either party, the Agency Worker shall repay to the Employment Business an amount in respect of any Holiday periods taken in excess of the holiday entitlement for that year and the Agency Worker hereby authorises the Employment Business to take repayment of such monies by way of deduction from any final payment owed to the Agency Worker. If, following such deduction the Agency Worker owes further monies in respect of pay received for annual leave taken but not accrued at the time of Termination, the Agency Worker will repay such monies within 14 days of termination of these Terms.
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 certificate 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.
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.
9.1 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, this contract for services will automatically terminate and the Employment Business will forward his/her P45 to his/her last known address.
10. 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.
11.1 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;-
11.1.1 not at any time, whether during or after an assignment (unless expressly so authorized 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;
11.1.2 to deliver 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
11.1.3 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.
12. DATA PROTECTION
12.1 The Agency Worker acknowledges that the Employment Business must process personal data about him/her in order to properly fulfil its obligation Under these Terms and as otherwise required by law in relation to his/her engagement in accordance with the Data Protection Laws. Such Processing will principally be for personnel, administrative and payroll purposes.
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.
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.
15. 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.
16. GOVERNING LAW & JURISDICTION
These terms are governed by the law of Scotland and are subject to the exclusive jurisdiction of the Courts of Scotland.
1.1 In this agreement the following definitions apply;-
1.2 References to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3 The headings contained in this Agreement are for convenience only and do not affect their interpretation.
The Working Time Regulations 1998 (as amended) provide that the Agency Worker shall not work on an Assignment with the Client in excess of the Working Week unless he/she agrees in writing that this limit should not apply.
The Agency Worker hereby agrees that the Working Week limit shall not apply to the Assignment.
4. Withdrawal of Consent
4.1 The Agency Worker may end this Agreement by giving the Employment Business 14 days notice in writing.
4.2 For the avoidance of doubt, any notice bringing this Agreement to an end shall not be construed as termination by the Agency Worker of an Assignment with a Client.
4.3 Upon the expiry of the notice period set out in clause 4.1 the Working Week limit shall apply with immediate effect.
5. The Law
This agreement is governed by the law of Scotland and is subject to the exclusive jurisdiction of the Courts of Scotland.