STANDARD TERMS OF BUSINESS FOR THE SUPPLY OF AGENCY WORKERS (v1.6 23 April 2021);
RECRUITEASY (“Recruiteasy”) a trading style or trading name of MARKETSMART LIMITED (registered company No. 04282143) of Unit 1, Templer House, Scott Close, Newton Abbot, Devon, TQ12 1GJ;
THE HIRER (“Hirer”) Name and address as supplied or trading address or Registered Office address as appropriate.
1.1. In these Terms the following definitions apply:
“Agency Worker” means the individual who is introduced by Recruiteasy to provide services to the Hirer and who may be either engaged by Recruiteasy as an Employee under a ‘Contract Of Service’ or as an independent self-employed contractor under a ‘Contract For Service’;
“Agency Workers Regulations” means the Agency Workers Regulations 2010;
“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 Recruiteasy as the Employment Business to work temporarily for and under the supervision and direction of the Hirer;
“Assignment Details” means written confirmation of the assignment details agreed with the Hirer prior to commencement of the Assignment;
“AWR Claim” means any complaint or claim to a tribunal or court made by or on behalf of the Agency Worker against the Hirer and/or Recruiteasy for any breach of the Agency Workers Regulations;
“Calendar Week” means any period of seven days starting with the same day as the first day of the First Assignment;
“Charges” means the hourly charges of Recruiteasy calculated in accordance with clause 6.1 and as may be varied from time-to-time in accordance with these Terms;
“Comparable Employee” means as defined in Schedule 1 to these Terms;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
“Confidential Information” means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Hirer or Recruiteasy 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 Recruiteasy 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;
“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, directly or indirectly, 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:
(a) the relevant Assignment; or
(b) if, prior to the relevant Assignment:
(i) the Agency Worker has worked in any assignment in the same role with the relevant Hirer as the role in which the Agency Worker works in the relevant Assignment; and
(ii) the relevant Qualifying Period commenced in any such assignment, that assignment (an assignment being (for the purpose of this defined term) a period of time during which the 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);
“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 Introduced;
“Hirer’s Group” means (a) any individual, company, partnership, statutory body or other entity which from time to time Controls the Hirer, including (but not limited to) as a holding company as defined in section 1159 of the Companies Act 2006; and (b) any company, partnership, statutory body or other entity which from time to time is Controlled by or is under common Control with the Hirer, including (but not limited to) as a subsidiary or holding company as defined in section 1159 of the Companies Act 2006;
“Introduction” means (i) the passing to the Hirer of a curriculum vitae or information which identifies the Agency Worker; or (ii) the Hirer’s interview of the Agency Worker (in person or by telephone or by any other means), following the Hirer’s instruction to the Employment Business to supply a temporary worker; or (iii) the supply of the Agency Worker; and, in any case, which leads to an Engagement of the temporary worker or the Agency Worker; and “Introduced” and “Introducing” shall be construed accordingly;
“Losses” means all losses, liabilities, damages, costs, expenses whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands;
“Period of 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 Schedule 1 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 Recruiteasy 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” means terms and conditions relating to:
(b) the duration of working time;
(c) night work;
(d) rest periods;
(e) rest breaks; and
(f) annual leave that is ordinarily included in the contracts of employees or workers (as appropriate) of the Hirer and including (for the avoidance of doubt and without limitation) such terms and conditions that have become contractual by virtue of custom and practice, including copies of all relevant documentation;
“Remuneration” includes gross base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, the benefit of a company car and all other payments and taxable (and, where applicable, non-taxable) emoluments payable to or receivable by the Agency Worker for services provided to or on behalf of the Hirer or any third party. Where a company car is provided, a notional amount of £100 will be added to the salary in order to calculate the Recruiteasy’s fee;
“Temporary Work Agency” means as defined in Schedule 1 to these Terms;
“Terms” means these terms of business (including the attached schedules) together with any applicable Assignment Details Form or notice;
“Transfer Fee” means the fee payable in accordance with clause 8 of these Terms and Regulation 10 of the Conduct Regulations;
“Vulnerable Person” means any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care or attention, and includes any person under the age of eighteen; and
“Working Time Regulations” means the Working Time Regulations 1998.
1.2. Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3. The headings contained in these Terms are for convenience only and do not affect their interpretation.
1.4. Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of these Terms) and all subordinate legislation made (before or after these Terms) under it from time to time.
2. THE CONTRACT
2.1. These Terms constitute the contract between Recruiteasy and the Hirer for the supply of the Agency Worker’s services by Recruiteasy to the Hirer and are deemed to be accepted by the Hirer by virtue of its request for, interview with or Engagement of the Agency Worker, or the passing of any information by the Hirer about an Agency Worker to any third party following an Introduction and not dependent in any way on whether a ‘hard copy’ has been signed by the Hirer and returned to Recruiteasy.
2.2. These Terms contain the entire agreement between the parties and unless otherwise agreed in writing by a director of Recruiteasy, these Terms prevail over any terms of business or purchase conditions (or similar) put forward by the Hirer.
2.3. Subject to clause 6.2, no variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director of Recruiteasy and the Hirer and are set out in writing and a copy of the varied Terms is given to the Hirer stating the date on or after which such varied Terms shall apply.
2.4. Recruiteasy shall act as an Employment Business (as defined in Section 13(3) of the Employment Agencies Act 1973) when Introducing Agency Workers for Assignments with the Hirer.
3. HIRER OBLIGATIONS
3.1. To enable Recruiteasy to comply with its obligations under the Conduct Regulations the Hirer undertakes to provide to Recruiteasy details of the position which the Hirer seeks to fill, including the following:
3.1.1. the type of work that the Agency Worker would be required to do;
3.1.2. the location and hours of work;
3.1.3. the experience, training, qualifications and any authorisation which the Hirer considers
necessary or which are required by law or any professional body for the Agency Worker to possess in order to work in the position;
3.1.4. any risks to health or safety known to the Hirer and what steps the Hirer has taken to prevent or control such risks;
3.1.5. the date the Hirer requires the Agency Worker to commence the Assignment;
3.1.6. the duration or likely duration of the Assignment.
3.2. The Hirer will assist Recruiteasy in complying with Recruiteasy’s duties under the Working Time Regulations by supplying any relevant information about the Assignment requested by Recruiteasy and the Hirer will not do anything to cause Recruiteasy to be in breach of its obligations under these Regulations. If the Hirer requires the services of an Agency Worker for more than 48 hours in any week during the course of an Assignment, the Hirer must notify Recruiteasy of this requirement before the commencement of the Assignment or at the very latest, where this is not reasonably practicable, before the commencement of the week in which the Hirer requires the Agency Worker to work in excess of 48 hours.
3.3. The Hirer will comply with its obligations under Regulation 12 (Rights of agency workers in relation to access to collective facilities and amenities) and 13 (Rights of agency workers in relation to access to employment) of the Agency Workers Regulations.
3.4. To enable Recruiteasy to comply with its obligations under the Agency Workers Regulations, the Hirer undertakes as soon as possible prior to the commencement of each Assignment and during each Assignment (as appropriate) and at any time at Recruiteasy’s request:
3.4.1. to inform Recruiteasy of any Calendar Weeks since 1 October 2011 in which the relevant Agency Worker has worked in the same or a similar role with the Hirer via any third party prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment which count or may count towards the Qualifying Period;
3.4.2. if, since 1 October 2011, the Agency Worker has worked in the same or a similar role with the Hirer via any third party prior to the date of commencement of the relevant Assignment and/or works in the same or a similar role with the Hirer via any third party during the relevant Assignment, to provide Recruiteasy 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 Recruiteasy;
3.4.3. to inform Recruiteasy if, since 1 October 2011, the Agency Worker has prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment:
188.8.131.52. completed two or more assignments with the Hirer;
184.108.40.206. completed at least one assignment with the Hirer and one or more earlier assignments with any member of the Hirer’s Group; and/or
220.127.116.11. worked in more than two roles during an assignment with the Hirer and on at least two occasions worked in a role that was not the same role as the previous role;
3.4.4. save where the Agency Worker will not complete the Qualifying Period during the term of the Assignment, to:
18.104.22.168. provide Recruiteasy with written details of the basic working and employment conditions the Agency Worker would be entitled to for doing the same job if the Agency Worker had been recruited directly by the Hirer as an employee or worker at the time the Qualifying Period commenced or with those of a Comparable Employee, such basic working and employment conditions being the Relevant Terms and Conditions;
22.214.171.124. inform Recruiteasy in writing whether the Relevant Terms and Conditions provided are those of a hypothetical directly recruited employee or worker or those of a Comparable Employee;
126.96.36.199. if the Relevant Terms and Conditions provided are those of a Comparable Employee, provide Recruiteasy with a written explanation of the basis on which the Hirer considers that the relevant individual is a Comparable Employee; and
188.8.131.52. inform Recruiteasy in writing of any variations in the Relevant Terms and Conditions made at any time during the relevant Assignment after the Qualifying Period commenced; and
184.108.40.206. save where the Agency Worker will not complete the Qualifying Period during the term of the Assignment, to provide Recruiteasy with written details of its pay and benefits structures and appraisal processes and any variations of the same.
3.5. In addition, for the purpose of awarding any bonus to which the Agency Worker may be entitled under the Agency Workers Regulations, the Hirer will:
3.5.1. integrate the Agency Worker into its relevant performance appraisal system;
3.5.2. assess the Agency Worker’s performance;
3.5.3. provide Recruiteasy with copies of all documentation relating to any appraisal of the Agency Worker, including without limitation written details of the outcome of any appraisal and the amount of any bonus awarded; and
3.5.4. provide Recruiteasy with all other assistance Recruiteasy may request in connection with the assessment of the Agency Worker’s performance for the purpose of awarding any bonus.
3.6. The Hirer will comply with all Recruiteasy’s requests for information and any other requirements to enable Recruiteasy to comply with the Agency Workers Regulations.
3.7. The Hirer warrants that:
3.7.1. all information and documentation supplied to Recruiteasy in accordance with clauses 3.4, 3.5 and 3.6 is complete, accurate and up-to-date; and
3.7.2. it will, during the term of the relevant Assignment, immediately inform Recruiteasy in writing of any subsequent change in any information or documentation provided in accordance with clauses 3.4, 3.5 and 3.6.
3.8. Without prejudice to clauses 14.7 and 14.8, the Hirer shall inform Recruiteasy in writing of any:
3.8.1. oral or written complaint the Agency Worker makes to the Hirer which is or may be a complaint connected with rights under the Agency Workers Regulations; and
3.8.2. written request for information relating to the Relevant Terms and Conditions that the Hirer receives from the Agency Worker as soon as possible but no later than 7 calendar days from the day on which any such oral complaint is made to or written complaint or request is received by the Hirer and the Hirer will take such action and give such information and assistance as Recruiteasy may request, and within any timeframe requested by Recruiteasy, in order to resolve any such complaint or to provide any such information in a written statement to the Agency Worker within 28 days of the Hirer’s receipt of such a request in accordance with Regulation 16 of the Agency Workers Regulations and the Hirer will provide Recruiteasy with a copy of any such written statement.
3.8.3. The Hirer undertakes that it knows of no reason why it would be detrimental to the interests of the Agency Worker for the Agency Worker to fill the Assignment.
3.9. Before any Agency Worker assigned to the Hirer is allowed to enter the site of work or carries out any work on any site the Hirer undertakes to ensure that a comprehensive site Induction and familiarisation brief is conducted and which includes a brief on any machinery or plant the Agency Worker may be required to operate or work around and includes a general Health and Safety brief pertaining to the site and relevant machinery or plant.
4. INFORMATION TO BE PROVIDED BY RECRUITEASY TO THE HIRER
4.1. When Introducing an Agency Worker to the Hirer Recruiteasy shall inform the Hirer:
4.1.1. of the identity of the Agency Worker;
4.1.2. that the Agency Worker has the necessary or required experience, training, qualifications and any authorisation required by law or a professional body to work in the Assignment;
4.1.3. that the Agency Worker is willing to work in the Assignment; and
4.1.4. the Charges.
4.2. 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 fifth business day (excluding Saturday, Sunday and any Public or Bank Holiday) following, save where the Agency Worker is introduced for an Assignment in the same position as one in which the Agency Worker had previously been supplied within the previous 28 business days and such information has already been given to the Hirer, unless the Hirer requests that the information be resubmitted.
5. TIMESHEETS AND ATTENDANCE
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) the Hirer shall either digitally or physically (as agreed) sign Recruiteasy’s timesheet verifying the number of hours worked by the Agency Worker during that week.
5.2. Signature or agreement of the timesheet by the Hirer is confirmation of the number of hours worked. If the Hirer is unable to sign or agree a timesheet produced for authentication by the Agency Worker because the Hirer disputes the hours claimed, the Hirer shall inform Recruiteasy as soon as is reasonably practicable and shall co-operate fully and in a timely fashion with Recruiteasy to enable Recruiteasy to establish what hours, if any, were worked by the Agency Worker. Failure to sign or agree to the timesheet does not absolve the Hirer of its obligation to pay the Charges in respect of the hours claimed by the Agency Worker.
5.3. The Hirer shall not be entitled to decline to sign or agree to a timesheet on the basis that it is dissatisfied with the work performed by the Agency Worker. In the event that the Hirer is dissatisfied with the Agency Worker the provisions of clause 10.1 below shall apply.
5.4. The Hirer must inform Recruiteasy immediately that any Agency Worker is off-hired or whose assignment is ended for any reason whatsoever. The Hirer agrees to indemnify Recruiteasy for all losses and costs associated with wrongful or fraudulent claims for hours worked by an Agency Worker where the Hirer has failed to notify Recruiteasy of the ending or off-hiring of an Agency Worker. It is the Hirer’s responsibility for verifying invoices and for keeping site logs confirming the attendance and hours worked by an Agency Worker and to minimise the opportunity for fraudulent timesheets to be submitted and to minimise exposure to losses.
6.1. The Hirer agrees to pay the Charges as notified to and agreed with the Hirer and as subsequently invoiced. The Charges are calculated according to the number of hours worked or claimed by the Agency Worker (to the nearest quarter hour) and comprise the following:
6.1.1. the Agency Worker’s hourly rate of pay;
6.1.2. an amount equal to any paid holiday leave to which the Agency Worker is entitled under the Working Time Regulations and, where applicable, the Agency Workers Regulations and which is accrued during the course of an Assignment;
6.1.3. any other amounts to which the Agency Worker is entitled under the Agency Workers Regulations, where applicable;
6.1.4. employer’s National Insurance contributions;
6.1.5. any travel, hotel or other expenses as may have been agreed with the Hirer or, if there is no such agreement, such expenses as are reasonable; and
6.1.6. Recruiteasy’s commission, which is calculated as a percentage of the Agency Worker’s hourly rate.
6.2. Recruiteasy reserves the right to vary the Charges agreed with the Hirer, by giving written notice to the Hirer:
6.2.1. in order to comply with any additional liability imposed by statute or other legal requirement or entitlement, including but not limited to the Agency Workers Regulations; and/or
6.2.2. if there is any variation in the Relevant Terms and Conditions.
6.3. The Charges are invoiced to the Hirer on a weekly basis or as otherwise agreed between the parties and are payable either as agreed or under the terms stated on the invoice or by pro-forma invoice. Where the Hirer has failed to promptly verify any invoice or at the latest within 7 days of issue or has failed to inform Recruiteasy of any discrepancy or issue with any invoice, the Hirer remains liable to Recruiteasy for any payments made or due to Agency Workers relating to the said invoice irrespective of whether the Agency Worker has worked for the Hirer for the hours claimed and the Hirer agrees to indemnify Recruiteasy for any payments, fees or legal costs incurred in resolving the matter.
6.4. In addition to the Charges, the Hirer will pay Recruiteasy an amount equal to any bonus that the Hirer awards to the Agency Worker in accordance with clause 3.5 immediately following any such award and Recruiteasy will pay any such bonus to the Agency Worker. For the avoidance of doubt, the Hirer will also pay any employer’s National Insurance Contributions and Recruiteasy’s commission on the bonus (calculated using the same percentage rate as that used under clause 6.1.6) in addition to any bonus payable to the Agency Worker.
6.5. VAT is payable at the applicable rate on the entirety of the Charges and all sums payable under clause 6.4.
6.6. In the event the Hirer wishes to terminate any Worker’s Assignment either prior to or after its agreed Start Date and Time, at least 12 hours of notice before the scheduled reporting time is to be provided by the Hirer to Recruiteasy in order that Recruiteasy is able to forewarn and/or reassign the Worker so to prevent costs and loss of earnings opportunity for the Worker. If the Hirer fails to provide the required 12 hours of notice, the Hirer remains liable to Recruiteasy for the reasonable Charges due for the day the Assignment was either due to start or was due to continue.
6.7. Recruiteasy reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment.
6.8. No refunds are payable in respect of the Charges of Recruiteasy.
6.9. The Hirer’s obligations under this clause 6 shall be performed without any right of the Hirer to invoke set-off, deductions, withholdings or other similar rights. For the avoidance of doubt the Hirer shall not withhold or set-off any fees or charges due to Recruiteasy in the event of any dispute involving an Agency Worker provided to the Hirer due to, for example, any alleged negligence or damage or fraudulent claim any other event during their engagement by the Hirer.
7. PAYMENT OF THE AGENCY WORKER
Recruiteasy assumes responsibility for paying the Agency Worker and where appropriate, for the deduction and payment of National Insurance Contributions and/or PAYE Income Tax or other taxes applicable to the Agency Worker pursuant to sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003 or to HMRC’s Construction Industry Scheme (CIS) regulations.
8. TRANSFER FEES
8.1. The Hirer shall be liable to pay a Transfer Fee if the Hirer Engages an Agency Worker Introduced by Recruiteasy other than via Recruiteasy or introduces the Agency Worker to a third party and such introduction results in an Engagement of the Agency Worker by the third party other than via Recruiteasy and:
8.1.1. where the Agency Worker has been supplied by Recruiteasy, such Engagement takes place during the Assignment or within the Relevant Period; or
8.1.2. where the Agency Worker has not been supplied, such Engagement takes place within 6 months from the date of the Introduction to the Hirer.
8.2. The Transfer Fee will be calculated in accordance with Schedule 2.
8.3. If the Hirer wishes to Engage the Agency Worker other than via Recruiteasy without liability to pay a Transfer Fee, the Hirer may, on giving one week’s written notice to Recruiteasy, engage the Agency Worker for the Period of Extended Hire specified in Schedule 2.
8.4. During such Period of Extended Hire Recruiteasy shall supply the Agency Worker on the same terms on which s/he has or would have been supplied during the Assignment and in any case on terms no less favourable than those terms which applied immediately before Recruiteasy received the notice in clause 8.3; and the Hirer shall continue to pay the Charges set out in clause 6. If Recruiteasy is unable to supply the Agency Worker for any reason outside its control for the whole or any part of the Period of Extended Hire; or the Hirer does not wish to hire the Agency Worker on the same terms as the Assignment; but the Agency Worker is Engaged by the Hirer, the Hirer shall pay the Transfer Fee, reduced pro-rata to reflect any Charges paid by the Hirer during any part of the Period of Extended Hire worked by the Agency Worker before being Engaged by the Hirer. If the Hirer fails to give notice of its intention to Engage the Agency Worker other than via Recruiteasy before such Engagement commences, the parties agree that the Transfer Fee shall be due in full.
8.5. Where prior to the commencement of the Hirer’s Engagement other than via Recruiteasy, Recruiteasy and the Hirer agree that such Engagement will be on the basis of a fixed term of less than 12 months, Recruiteasy may, in its absolute discretion, reduce the Transfer Fee as calculated in accordance with Schedule 2 pro-rata. Such reduction is subject to the Hirer Engaging the Agency Worker for the agreed fixed term. Should the Hirer extend the Agency Worker’s Engagement or re-Engage the Agency Worker within 12 months from the commencement of the initial Engagement Recruiteasy reserves the right to recover the balance of the Transfer Fee.
8.6. No refund of the Transfer Fee will be paid in the event that the Engagement of the Agency Worker other than via Recruiteasy by the Hirer or by a third party to which the Hirer introduces the Agency Worker terminates or terminates before the end of the fixed term referred to in clause 8.5.
8.7. VAT is payable in addition to any Transfer Fee due.
9. SUITABILITY CHECKS AND INFORMATION TO BE PROVIDED IN SPECIAL SITUATIONS
9.1.1. the Agency Worker is required by law, or any professional body to have any qualifications or authorisations to work on the Assignment, Recruiteasy will take all reasonably practicable steps to obtain and offer to provide to the Hirer copies of any relevant qualifications or authorisations of the Agency Worker; and
9.1.2 in addition, where the Assignment involves working with, caring for or attending one or more Vulnerable Persons, Recruiteasy will take all reasonably practicable steps to obtain and offer to provide copies to the Hirer of two references from persons who are not relatives of the Agency Worker and who have agreed that the references they provide may be disclosed to the Hirer; and
9.1.3. such other reasonably practicable steps as are required to confirm that the Agency Worker is suitable for the Assignment. If Recruiteasy has taken all reasonably practicable steps to obtain the information above and has been unable to do so fully it shall inform the Hirer of the steps it has taken to obtain this information in any event.
9.2. The Hirer shall advise Recruiteasy at the time of instructing Recruiteasy to supply an Agency Worker whether during the course of the Assignment, the Agency Worker will be required to work with, care for or attend one or more Vulnerable Persons or engage in activity or otherwise be working in a position covered by the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 as applicable.
9.3. The Hirer shall assist Recruiteasy by providing any information required to allow Recruiteasy to comply with its statutory obligations under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 as applicable and to allow Recruiteasy to select a suitable Agency Worker for the Assignment.
9.4. In particular in the event that the Hirer removes an Agency Worker from an Assignment in circumstances which would require Recruiteasy to provide information to the Independent Safeguarding Authority (or the equivalent authority) under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007, the Hirer will provide sufficient information to Recruiteasy to allow it to discharge its statutory obligations.
10. UNSUITABILITY OF THE AGENCY WORKER
10.1. The Hirer undertakes to supervise the Agency Worker sufficiently to ensure the Hirer’s satisfaction with the Agency Worker’s standards of work. If the Hirer reasonably considers that the services of the Agency Worker are unsatisfactory, the Hirer may terminate the Assignment either by instructing the Agency Worker to leave the Assignment immediately, or by directing Recruiteasy to remove the Agency Worker. Recruiteasy may, in its absolute discretion, in such circumstances, reduce or cancel the Charges for the time worked by that Agency Worker, provided that the Hirer has notified Recruiteasy immediately that they have asked the Agency Worker to leave the Assignment or the Assignment terminates:
10.1.1. within 4 hours of the Agency Worker commencing the Assignment where the Assignment is for more than 7 hours; or
10.1.2. within 2 hours for Assignments of 7 hours or less; and provided that notification of the unsuitability of the Agency Worker is confirmed in writing to Recruiteasy within 48 hours of the termination of the Assignment.
10.2. Recruiteasy shall notify the Hirer immediately if it receives or otherwise obtains information which gives Recruiteasy reasonable grounds to believe that any Agency Worker supplied to the Hirer is unsuitable for the Assignment and shall be entitled to terminate the Assignment forthwith without prior notice and without liability. Notwithstanding, the Hirer shall remain liable for all Charges incurred prior to the termination of the Assignment.
10.3. The Hirer shall notify Recruiteasy immediately and without delay and in any event within one hour if the Agency Worker fails to attend work or has notified the Hirer that they are unable to attend work for any reason.
11. TERMINATION OF THE ASSIGNMENT
Any of the Hirer, Recruiteasy or the Agency Worker may terminate an Assignment at any time without prior notice and without liability except, in the case of termination by the Hirer, the Hirer shall be liable for any Charges due under clause 6 above and in particular where less than 12 hours of notice have been provided by the Hirer to Recruiteasy.
12. CONFIDENTIALITY AND DATA PROTECTION
12.1. All information relating to an Agency Worker is confidential and subject to the Data Protection Laws and is provided solely for the purpose of providing work-finding services to the Hirer. Such information must not be used for any other purpose nor divulged to any third party and the Hirer undertakes to abide by the provisions of the Data Protection Laws in receiving and processing the data at all times.
12.2. Recruiteasy undertakes to keep confidential all Relevant Terms and Conditions that the Hirer discloses to Recruiteasy and not to use such information except for the purposes of compliance with the Agency Workers Regulations (including, for the avoidance of doubt and without limitation, when dealing with any request for information or complaint made by any Agency Worker or any AWR Claim).
12.3. Information relating to Recruiteasy’s business which is capable of being confidential must be kept confidential and not divulged to any third party, except information which is in the public domain.
13. INTELLECTUAL PROPERTY RIGHTS
All copyright, trademarks, patents and other intellectual property rights deriving from the Assignment shall belong to the Hirer. Accordingly, Recruiteasy shall use its reasonable endeavours to ensure that the Agency Worker shall execute all such documents and do all such acts in order to give effect to the Hirer’s rights pursuant to this clause.
14.1. Whilst reasonable efforts are made by Recruiteasy to give satisfaction to the Hirer by ensuring reasonable standards of skill, integrity and reliability from the Agency Worker and to provide the same in accordance with the Assignment details as provided by the Hirer, no liability is accepted by Recruiteasy for any loss, expense, damage or delay arising from any failure to provide any Agency Worker for all or part of the Assignment or from the negligence, dishonesty, misconduct or lack of skill of the Agency Worker or if the Agency Worker terminates the Assignment for any reason. For the avoidance of doubt, Recruiteasy does not exclude liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude under law.
14.2. Agency Workers supplied by Recruiteasy pursuant to these Terms are engaged either under contracts for services or contracts of service as Agency Workers and are not par se the employees of Recruiteasy but are deemed to be under the supervision and direction of the Hirer from the time they report to take up duties and for the duration of the Assignment. The Hirer agrees to be responsible for all acts, errors or omissions of the Agency Worker, whether wilful, negligent, fraudulent or otherwise as though the Agency Worker was on the payroll of the Hirer and agrees to indemnify Recruiteasy for any such acts, errors or omissions.
14.3. The Hirer shall advise Recruiteasy of any special health and safety matters about which Recruiteasy is required to inform the Agency Worker and about any requirements imposed by law or by any professional body, which must be satisfied if the Agency Worker is to fill the Assignment.
14.4. The Hirer will also comply in all respects with all statutory provisions as are in force from time to time including, for the avoidance of doubt, but not limited to the Working Time Regulations, Health and Safety at Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999, by-laws, codes of practice and legal requirements to which the Hirer is ordinarily subject in respect of the Hirer’s own staff (excluding the matters specifically mentioned in clause 7 above), including in particular the provision of adequate Employer’s and Public Liability Insurance cover for the Agency Worker during all Assignments.
14.5. The Hirer undertakes not to request the supply of an Agency Worker to perform the duties normally performed by a worker who is taking part in official industrial action or duties normally performed by a worker who has been transferred by the Hirer to perform the duties of a person on strike or taking official industrial action.
14.6. The Hirer shall indemnify and keep indemnified Recruiteasy against any Losses incurred by Recruiteasy arising out of any Assignment or arising out of any non-compliance with, and/or as a result of any breach of, these Terms by the Hirer.
14.7. The Hirer shall inform Recruiteasy in writing of any AWR Claim which comes to the notice of the Hirer as soon possible but no later than 7 calendar days from the day on which any such AWR Claim comes to the notice of the Hirer.
14.8. If the Agency Worker brings, or threatens to bring, any AWR Claim, the Hirer undertakes to take such action and give such information and assistance as Recruiteasy may request, and within any timeframe requested by Recruiteasy and at the Hirer’s own cost, to avoid, dispute, resist, mitigate, compromise or defend any such AWR Claim and to appeal against any judgment given in respect thereof.
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.
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.
17. GOVERNING LAW AND JURISDICTION
These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales
SCHEDULE 1: “COMPARABLE EMPLOYEE”, “QUALIFYING PERIOD” AND “TEMPORARY WORK AGENCY”
1. “Comparable Employee” means as defined in Regulation 5(4) of the Agency Workers Regulations being an employee of the Hirer who:
(a) works for and under the supervision of the Hirer and is engaged in the same or broadly similar work as the Agency Worker having regard, where relevant, to whether the employee and the Agency Worker have a similar level of qualification and skill; and
(b) works or is based at the same establishment as the Agency Worker or, where there is no comparable employee working or based at that establishment who satisfies the requirements of (a) above, works or is based at a different establishment and satisfies those requirements.
2. For the purpose of the definition of “Qualifying Period” in clause 1.1 of these Terms, when calculating whether any weeks completed with the Hirer count as continuous towards the Qualifying Period, where:
(a) works the Agency Worker has started working during an assignment and there is a break, either between assignments or during an assignment, when the Agency Worker is not working;
(b) the break is:
(i) for any reason and not more than six Calendar Weeks;
(ii) wholly due to the fact that the Agency Worker is incapable of working in consequence of sickness or injury and the break is 28 Calendar Weeks or less; paragraph (iii) does not apply; and, if required to do so by Recruiteasy, the Agency Worker has provided such written medical evidence as may reasonably be required;
(iii) related to pregnancy, childbirth or maternity and is at a time in a protected period, being a period beginning at the start of the pregnancy and ending at the end of the 26 weeks beginning with childbirth (being the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy) or, if earlier, when the Agency Worker returns to work;
(iv) wholly for the purpose of taking time off or leave, whether statutory or contractual, to which the Agency Worker is otherwise entitled which is:
a. ordinary, compulsory or additional maternity leave;
b. ordinary or additional adoption leave;
c. ordinary or additional paternity leave;
d. time off or other leave not listed in paragraphs (iv)i, ii, or iii above; or
e. for more than one of the reasons listed in paragraphs (iv)i, ii, iii to iv above;
(v) wholly due to the fact that the Agency Worker is required to attend at any place in pursuance to being summoned for service as a juror and the break is 28 Calendar Weeks or less;
(vi) wholly due to a temporary cessation in the Hirer’s requirement for any worker to be present at the establishment and work in a particular role for a pre-determined period of time according to the established custom and practices of the Hirer;
(vii) wholly due to a strike, lock-out or other industrial action at the Hirer’s establishment; or
(viii) wholly due to more than one of the reasons listed in paragraphs (ii), (iii), (iv), (v), (vi) or (vii); and
(c) the Agency Worker returns to work in the same role with the Hirer, any weeks during which the Agency Worker worked for the Hirer before the break shall be carried forward and treated as counting towards the Qualifying Period with any weeks during which the Agency Worker works for the Hirer after the break. In addition, when calculating the number of weeks during which the Agency Worker has worked, where the Agency Worker has started working in a role during an Assignment and is unable to continue working for a reason described in paragraph (b)(iii) or (b)(iv)i., ii, or iii., for the period that is covered by one or more such reasons, the Agency Worker shall be deemed to be working in that role with the Hirer for the original intended duration or likely duration of the relevant Assignment, whichever is the longer. For the avoidance of doubt, time spent by the Agency Worker working during an assignment before 1 October 2011 does not count for the purposes of the definition of “Qualifying Period”.
3. “Temporary Work Agency” means as defined in Regulation 4 of the Agency Workers Regulations being a person engaged in the economic activity, public or private, whether or not operating for profit, and whether or not carrying on such activity in conjunction with others, of:
(a) supplying individuals to work temporarily for and under the supervision and direction of hirers; or
(b) paying for, or receiving or forwarding payment for, the services of individuals who are supplied to work temporarily for and under the supervision and direction of hirers.
Notwithstanding paragraph (b) of this definition a person is not a Temporary Work Agency if the person is engaged in the economic activity of paying for, or receiving or forwarding payments for, the services of individuals regardless of whether the individuals are supplied to work for hirers. For the purpose of this definition, a “hirer” means a person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person.
SCHEDULE 2: TRANSFER FEES
(a) The Transfer Fee referred to in clause 8 shall be calculated as follows: 12% of the Remuneration payable to the Agency Worker during the first 12 months of the Engagement or, if the actual amount of the Remuneration is not known, the Charges multiplied by 250.
(b) The Period of Extended Hire, referred to in clause 8, before the Hirer Engages an Agency Worker shall be 26 weeks.