Terms and Conditions

  1. DEFINITIONS AND INTERPRETATION

           

 

Agency Worker”                                        means the individual who is Introduced by the Employment Business to provide services to the Hirer;

 

“Assignment”                                               means assignment services to be performed by the Agency Worker for the Hirer for a period of time during which the Agency Worker is supplied by the Employment Business to work temporarily for and under the supervision and direction of the Hirer;

 

“Assignment Details Form”                    means written confirmation of the assignment details agreed with the Hirer prior to commencement of the Assignment;

 

“AWR”                                                             means the Agency Workers Regulations 2010 [and/ or the Agency Workers (Northern Ireland) Regulations 2011]; [see Note 1]]

 

“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 the Employment Business for any breach of the AWR;

 

“Calendar Week”                                        means any period of seven days starting with the same day as the first day of the First Assignment;

 

“Charges”                                                       means the Employment Business’s charges calculated in accordance with clause 6 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;

 

[“Commencement Date”                         means [insert the start date of the exclusivity period] and for the avoidance of doubt all the provisions of these Terms shall be deemed to become effective at this date; OPTIONAL DEFINITION: see Note 2]

 

“Conduct Regulations”                             means the Conduct of Employment Agencies and Employment Businesses Regulations 2003  [and/ or the Conduct of Employment Agencies and Employment Businesses Regulations (Northern Ireland) 2005]; [see Note 3]

 

“Confidential Information”                    means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Hirer or Employment Business or their business or affairs (including but not limited to these Terms, data, records, reports, agreements, software, programs, specifications, know-how, trade secrets and other information concerning the Assignment) in any form or medium whether disclosed or granted access to whether in writing, orally or by any other means, provided to the Agency Worker or any third party in relation to the Assignment by the Hirer or the Employment Business or by a third party on behalf of the Hirer whether before or after the date of these Terms together with any reproductions of such information in any form or medium or any part(s) of such information;

 

“Control”                                                        means (a) the legal or beneficial ownership, directly or indirectly, of more than 50% of the issued share capital or similar right of ownership; or (b) the power to direct or cause the direction of the affairs and/or general management of the company, partnership, statutory body or other entity in question, whether through the ownership of voting capital, by contract or otherwise, and “Controls” and “Controlled” shall be construed accordingly;

 

“Data Protection Laws”                            means the Data Protection Act 1998, the General Data Protection Regulation (EU 2016/679) and any applicable statutory or regulatory provisions in force from time to time relating to the protection and transfer of personal data; [see Note 4]

 

[“Exclusivity Term”                                    means the period during which the Employment Business exclusively supplies work-finding services to the Hirer in accordance with clause 2.5 commencing on the Commencement Date OPTIONAL DEFINITION: see Note 2]

 

“Employment Business”                          [Sirona Medical] Limited (registered company no. [09754430]) [trading as [insert trading name if different]] of [address – see Note 5(Harlow Enterprise Hub, Kao Hockham Building, Edinburgh Way, Harlow, Essex, CM20 2NQ re registered office or trading address]. [see Note 6 if the Employment Business is a limited liability partnership];

 

“Engagement”                                             means the engagement (including the Agency Worker’s acceptance of the Hirer’s offer), employment or use of the Agency Worker by the Hirer or by any third party to whom the Agency Worker has been introduced by the Hirer, on a permanent or temporary basis, whether under a contract of service or for services; under an agency, licence, franchise or partnership agreement; or any other engagement; or through a limited company of which the Agency Worker is an officer, employee or other representative; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;

 

“First Assignment”                                     means:

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; [see Note 7]

 

“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; [see Note 7]

 

“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, fines, penalties or interest, whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands;

 

“Period of 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 the later of (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 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; [see Note 8]

 

Relevant Terms and Conditions”       means terms and conditions relating to:

that are ordinarily included in the contracts of employees or workers (as appropriate) of the Hirer whether by collective agreement or otherwise and including (for the avoidance of doubt and without limitation) such terms and conditions that have become contractual by virtue of custom and practice, including copies of all relevant documentation;

 

“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 [0] [see Note 9] will be added to the salary in order to calculate the Employment Business’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;

 

“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

 

“WTR”                                                            means the Working Time Regulations 1998 [and/ or the Working Time Regulations (Northern Ireland) 1998] [see Note 10].

 

 

 

 

  1. THE CONTRACT

 

            

 

 

 

EXCLUSIVITY TERM (OPTIONAL CLAUSE) [See Note 13]

 

 

 

 

 

 

 

 

  1. HIRER OBLIGATIONS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 the Employment Business may request, and within any timeframe requested by the Employment Business, in order to resolve any such complaint or to provide any such information in a written statement to the Agency Worker within 28 days of the Hirer’s receipt of such a request in accordance with Regulation 16 of the AWR and the Hirer will provide the Employment Business with a copy of any such written statement.

 

 

  1. INFORMATION TO BE PROVIDED BY THE EMPLOYMENT BUSINESS TO THE HIRER

 

 

 

 

 

 

 

  1. TIMESHEETS

 

 

 

 

  1. CHARGES

               

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A: The Employment Business 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.

 

B: The Employment Business reserves the right to charge interest on invoiced amounts unpaid by the due date at the rate of [8]% per annum above the base rate from time to time of [specify your bank] from the due date until the date of payment.

 

 

 

  1. PAYMENT OF THE AGENCY WORKER

 

The Employment Business is responsible for paying the Agency Worker and where appropriate, for the deduction and payment of National Insurance Contributions and PAYE Income Tax applicable to the Agency Worker pursuant to sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003. [see Note 26]

 

  1. TRANSFER FEES [see Note 27]

 

 

 

 

The Transfer Fee will be calculated in accordance with Schedule 2.

 

 

 

 

 

 

 

 

  1. SUITABILITY CHECKS AND INFORMATION TO BE PROVIDED IN SPECIAL SITUATIONS [see Note 29]

 

 

 

 

and such other reasonably practicable steps as are required to confirm that the Agency Worker is suitable for the Assignment. If the Employment Business has taken all reasonably practicable steps to obtain the information above and has been unable to do so fully it shall inform the Hirer of the steps it has taken to obtain this information in any event.

 

 

 

 

  1. UNSUITABILITY OF THE AGENCY WORKER [see Note 31]

 

 

 

 

and provided that notification of the unsuitability of the Agency Worker is confirmed in writing to the Employment Business within 48 hours of the termination of the Assignment.

 

 

 

  1. TERMINATION OF THE ASSIGNMENT

 

Any of the Hirer, the Employment Business 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, who shall be liable for any Charges due under clause 6 above).

 

  1. CONFIDENTIALITY AND DATA PROTECTION

 

 

 

 

  1. INTELLECTUAL PROPERTY RIGHTS

 

All copyright, trademarks, patents and other intellectual property rights deriving from the Assignment shall belong to the Hirer. Accordingly the Employment Business shall use its reasonable endeavours to ensure that the 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.

 

  1. LIABILITY

 

 

 

 

 

 

 

 

 

  1. NOTICES

 

All notices which are required to be given in accordance with these Terms shall be in writing and may be delivered personally or by first class prepaid post to the registered office of the party upon whom the notice is to be served or any other address that the party has notified the other party in writing, including by email 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.

 

  1. SEVERABILITY

 

If any of the provisions of these Terms shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining Terms, which shall continue to be valid to the fullest extent permitted by applicable laws.

 

  1. 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.

 

  1. GOVERNING LAW AND JURISDICTION

 

These Terms are governed by the law of [England & Wales/Scotland/ Northern Ireland] and are subject to the exclusive jurisdiction of the Courts of [England & Wales/Scotland/ Northern Ireland]. [see Note 35]

 

 

                                                                                                       

Signed for and on behalf of the Hirer

 

 

                                                                                                       

[print name here]

 

                                      

 

I confirm I am authorised to sign these Terms for and on behalf of the Hirer.

 

                                                                                                       

Date

 

[see Note 36]

 

SCHEDULE 1: “COMPARABLE EMPLOYEE”, “QUALIFYING PERIOD” AND “TEMPORARY WORK AGENCY”

 

“Comparable Employee” means as defined in Regulation 5(4) of the AWR being an employee of the Hirer who:

 

[see Note 37] 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:

  1. time off or other leave not listed in paragraphs (iv)i, ii, or iii above; or
  2. for more than one of the reasons listed in paragraphs (iv)i, ii, iii to iv above;

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 [or 5 December 2011] does not count for the purposes of the definition of “Qualifying Period”.

 

“Temporary Work Agency” means as defined in Regulation 4 of the AWR 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 [see Notes 38 and 39]

 

 

 

                 Option A:

(a) The Transfer Fee referred to in clause 8 shall be calculated as follows: [25]% 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 [300]. [See Note 38]

 

(b) The Period of Extended Hire, referred to in clause 8, before the Hirer Engages an Agency Worker shall be: [12] weeks. [See Note 39]