Contract for Services

1. DEFINITIONS

• • In these Terms of Engagement the following definitions apply:

“Actual Rate of Pay” means the rate of pay which will be paid for each hour worked during an Assignment (to the nearest quarter hour) weekly in arrears, subject to deductions in respect of PAYE pursuant to Sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003 and Class 1 National Insurance Contributions, any other deductions which the Employment Business may be required by law to make and, any Agreed Deductions;

“Agreed Deductions” means any deductions the Temporary Worker has agreed can be made from their pay;

“Assignment” means the period during which the Temporary Worker is supplied by the Employment Business to provide services to the Customer;

“Confirmation of Temporary Assignment” means written confirmation of the assignment details to be given to the Temporary Worker upon acceptance of the Assignment;

“Customer” 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 Temporary Worker is supplied or introduced;

“Conduct Regulations” means the Conduct of Employment Agencies and Employment Business Regulations 2003 (as amended);

“Confidential Information” shall mean any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Customer or Employment Business or their business affairs (including but not limited to this Agreement, 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, the Temporary Worker or any third party in relation to the Assignment by the Customer or the Employment Business or by a third party on behalf of the Customer whether before or after the date of this Agreement together with any reproductions of such information in any form or medium or any part(s) of such information;

“Employment Business” Smeaton Healthcare Limited (Registered Company No. 11832133) of Eclipse House, 5 Somerset Place Lane, Plymouth, PL3 4BH (“The Employment Business”). 

“Engagement” means the engagement, employment or use of the Temporary Worker by the Customer or by any third party to whom the Temporary Worker has been introduced by the Customer on a permanent or temporary basis, whether under a contract of service or for services; an agency, license, franchise or partnership agreement; or by any other engagement; or through any other employment business; or through a limited company of which the Temporary Worker is an officer, employee or other representative; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;

“Hourly Rate” means £10.50 per hour being the minimum rate of pay, or any higher rate, that the Employment Business reasonably expects to achieve for all hours worked by the Temporary Worker;

“Leave Year” means the period during which the Temporary Worker accrues and may take statutory leave commencing on the date that the Temporary Worker starts an Assignment or a series of Assignments and runs until the anniversary of that date;

“Period of Extended Hire” means any additional period that the Customer wishes the Temporary Worker to be supplied for beyond the duration of the original Assignment or series of assignments as an alternative to paying a Transfer Fee;

“Relevant Period” means

(a) the period of 8 weeks commencing on the day after the last day on which the Temporary Worker worked for the Customer having been supplied by the Employment Business; or

(b) the period of 14 weeks commencing on the first day on which the Temporary Worker worked for the Customer having been supplied by Employment Business or 14 weeks from the first day of the most recent Assignment where there has been a break of more than 6 weeks (42 days) since any previous assignment;

“Temporary Worker” means supplied by the Employment Business to provide services to the Customer;

“Transfer Fee” means the fee payable by the Customer to the Employment Business if the Customer wishes to Engage the Temporary Worker, as permitted by Regulation 10 of the Conduct Regulations;

; and

“Working Time Regulations” means the Working Time Regulations 1989 (as amended);

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.

2. THE CONTRACT

2.1        These terms, together with any applicable Confirmation of Temporary Assignment (“Terms”), constitute the entire agreement between the Employment Business and the Temporary Worker for the supply of services to the Customer and they shall govern all assignments undertaken by the Temporary Worker.  However, no contract shall exist between the Employment Business and the Temporary Worker between assignments.  These terms shall prevail over any other terms put forward by the Temporary Worker.

2.2        During an assignment the Temporary Worker will be engaged on a contract for services by the Employment Business on these terms.  For the avoidance of doubt, the Temporary Worker is not an employee of the Employment Business although the Employment Business is required to make statutory deductions from The Temporary Worker’s pay.  These terms shall not give rise to a contract of employment between the Employment Business and the Temporary Worker, or the Temporary Worker and the Customer.  The Temporary 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 Temporary Worker rights in addition to those provided by statute except where expressly stated.

2.3        No variation or alteration to these terms shall be valid unless the details of such variation are agreed between the Employment business and the Temporary Worker and set out in writing and a copy of the varied terms is given to the Temporary Worker 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 Temporary Worker for assignments with its Customers.

3. ASSIGNMENTS AND INFORMATION TO BE PROVIDED

3.1        The Employment Business will endeavour to obtain suitable assignments for the Temporary Worker performing the agreed type of work.  The Temporary Worker shall not be obliged to accept any assignment offered by the Employment Business.

3.2        The Temporary 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 Temporary Worker should it fail to offer assignments of the type of work or any other work;

3.3        At the same time as an assignment is offered to the Temporary Worker the Employment Business shall provide the Temporary Worker with the Confirmation of Temporary Assignment setting out the following:

3.3.1     the identity of the Customer, and if applicable the nature of their business;

3.3.2     the date the assignment is to commence and the duration or likely duration of assignment;

3.3.3     the type of work, location and hours during which the Temporary 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 Temporary Worker;

3.3.5     any risks to health and safety known to the Customer in relation to the assignment and the steps the Customer 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 Customer 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 (excluding Saturday, Sunday and any Public or Bank Holiday) following save where:

3.4.1     the Temporary Worker is being offered an assignment in the same position as one in which the Temporary Worker has previously been supplied within the previous 5 business days and such information has already been given to the Temporary Worker; or

3.4.2     subject to clause 3.5, the assignment is intended to last for 5 consecutive working days or less and such information has previously been given to the Temporary Worker before and remains unchanged, the Employment Business needs only to provide written confirmation of the identity of the Customer 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 working day period, the Employment Business shall provide such information set out in clause 3.3 to the Temporary 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 Temporary 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 Temporary Worker commences the first assignment.

3.7        If, before or during an assignment or during the relevant period, the Customer wishes to engage the Temporary Worker directly or through another employment business, the Temporary Worker acknowledges that the Employment Business will be entitled either to charge the Customer a Transfer Fee or to agree a period of extended hire with the Customer at the end of which the Temporary Worker may be engaged directly by the Customer or through another employment business without further charge to the Customer.  In addition the Employment Business will be entitled to charge a Transfer Fee to the Customer if the Customer introduces the Temporary Worker to a third party who subsequently engages the Temporary Worker within the relevant period.

4. TEMPORARY WORKER’S OBLIGATIONS

4.1        The Temporary Worker is not obliged to accept any assignment offered by the Employment Business but if she/he does so, during every assignment and afterwards where appropriate, she/he will:

4.1.1     co-operate with the Customer’s reasonable instructions and accept the direction, supervision and control of any responsible person in the Customer’s organisation;

4.1.2     observe any relevant rules and regulations of the Customer’s establishment (including normal hours of work) to which attention has been drawn or which the Temporary Worker might reasonably be expected to ascertain;

4.1.3     take all reasonable steps to safeguard his/her/their 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 Customer;

4.1.4     not engage in any conduct detrimental to the interests of the Customer or Employment Business;

4.1.5     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 Customer’s or the Employment Business’ employees, business affairs, transactions or finances; not to use the telephone, fax, email or computer systems belonging to the Customer for personal gain or benefit;

4.1.6     on completion of the assignment or at any time when requested by the Customer or the Employment Business, return to the Customer or where appropriate, to the Employment Business, any Customer property or items provided to the Temporary Worker in connection with or for the purpose of the assignment, including  but not limited to any equipment, materials, documents, swipe cards or ID cards, uniforms, personal protective equipment or clothing;

4.2        If the Temporary Worker is unable for any reason to attend work during the course of an assignment she/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 Temporary Worker should alternatively inform the Customer and then the Employment Business as soon as possible.

4.3        If, either before or during the course of an assignment, the Temporary Worker becomes aware of any reason why she/he may not be suitable for an assignment, she/he shall notify the Employment Business without delay.

4.4        The Temporary Worker acknowledges that any breach of his/her obligations set out in this clause may cause the Employment Business to suffer loss and that the Employment Business reserves the right to recover such losses from the Temporary Worker.

5. TIMESHEETS

5.1        At the end of each working day of an assignment the Temporary Worker shall sign an electronic timesheet as directed by the Employment Business, completed to indicate the number of hours worked during the day and signed by an authorised representative of the Customer.

5.2        Subject to clause 5.3 the Employment Business shall pay the Temporary Worker for all hours worked regardless of whether the Employment Business has received payment from the Customer for those hours.

5.3        Where the Temporary 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 Temporary Worker and the reasons that the Customer has refused to sign a timesheet in respect of those hours.  This may delay any payment due to the Temporary Worker.  The Employment Business shall make no payment to the Temporary Worker for hours not worked.

5.4        For the avoidance of doubt and for the purposes of the Working Time Regulations, the Temporary Worker’s working time shall only consist of those periods during which she/he/they are carrying out activities or duties for the Customer as part of the assignment.  Time spent travelling to the Customer’s premises, lunch breaks and other rest breaks shall not count as part of the Temporary Worker’s working time for these purposes, unless otherwise stated.

6. REMUNERATION

6.1        The Employment Business shall pay to the Temporary Worker the actual rate of pay which will be notified on a per assignment basis.

6.2        Subject to any statutory entitlement under the relevant legislation referred to in clauses 7 and 8 below and any other statutory entitlement, the Temporary Worker is not entitled to receive payment from the Employment Business or the Customer for time not spent on assignment, whether in respect of illness or absence for any other reason unless otherwise agreed.

6.3        Where the Temporary Worker holds a valid A1, E101 or E102 Certificate confirming coverage by a social security scheme in a Member State other than the UK, the Temporary Worker must declare this to the Employment Business and produce the Certificate.  In such cases the Employment Business shall not deduct Class 1 National Insurance Contributions from the actual rate of pay but it shall be the responsibility of the Temporary Worker to pay such social fee contributions as may be applicable in the Member State concerned.  In the event that the Temporary Worker fails to pay such contributions and the Employment Business is required to pay contributions either in the UK or the Member State concerned, the Temporary Worker undertakes to indemnify the Employment Business and the Employment Business shall be entitled to deduct the amount paid in contributions from any sums owed to the Temporary Worker.

7. STATUTORY PAID ANNUAL LEAVE

7.1        The Temporary Worker is entitled to paid annual leave according to the statutory minimum as provided by the Working Time Regulations. 

7.2        If the statutory minimum entitlement is subsequently decreased or increased then the Temporary Worker’s entitlement to paid annual leave under this clause will be automatically decreased or increased to the statutory minimum as it applies to any period in which work is carried out.

7.3        Entitlement to payment for leave accrues in proportion to the amount of time worked by the Temporary Worker on an assignment during the leave year.

7.4        All entitlement to leave must be taken during the course of the leave year in which it accrues and none may be carried forward to the next year.  The Temporary Worker is responsible for ensuring that all paid annual leave is requested and taken within the leave year.

7.5        Where a Temporary Worker wishes to take paid leave during the course of an assignment, she/he/they should notify the Employment Business of the dates of his/her/their intended absence giving notice of at least two (2) weeks before the period of leave she/he wishes to take.  In certain circumstances the Employment Business may require the Temporary Worker to take paid annual leave at specific times or notify the Temporary Worker of periods when paid annual leave cannot be taken.  Where the Temporary 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 Temporary Worker to postpone or reduce the amount of leave that the Temporary Worker wishes to take.  In such circumstances, the Employment Business will inform the Temporary 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        The amount of payment which the Temporary 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 Temporary Worker has worked on assignment.  Payments for annual leave will be calculated on the basis of rates paid during the Customer’s normal working hours, i.e. those which do not attract overtime rates of pay.

7.7        In the course of any assignment during the first leave year, the Temporary Worker is entitled to request leave at the rate of one-twelfth of the Temporary Worker’s total holiday entitlement in each month of the leave year.

8. SICKNESS ABSENCE

8.1        The Temporary Worker may be eligible for Statutory Sick Pay provided that she/he/they meets the relevant statutory criteria.

8.2        The Temporary 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 Temporary Worker submits a Statement of Fitness for Work (“the Statement”) or similar medical evidence, which indicates that the Temporary Worker may, subject to certain conditions, be fit to work/return to work, the Employment Business will in its absolute discretion determine whether the Temporary 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 Customer and the Temporary 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 Temporary Worker’s placement in a new assignment or continuation in an ongoing assignment may be subject to the Temporary Worker agreeing to a variation of the terms or the assignment details set out in the Confirmation of Temporary Assignment to accommodate any conditions identified in the Statement or other similar medical evidence as is appropriate.

9. DATA PROTECTION AND DISCLOSURE OF INFORMATION

9.1        The Temporary Worker consents to the Employment Business holding, processing and accessing both electronically and manually such records and personal data including sensitive personal data provided by the Temporary Worker to the Employment Business and to the content of such records and data being disclosed to a third party (including the Customer) for the purposes permitted or required by the General Data Protection Regulations (GDPR).  The Temporary Worker also consents to the transfer of personal data to the Customer or any potential Customer or to third parties for administration purposes and other purposes in connection with assignments and/or the search for assignments.

9.2        The Employment Business agrees that it will not disclose any confidential information about the Temporary Worker without his/her prior consent unless it is:

9.2.1     to provide work-finding services for the Temporary Worker in accordance with the terms of this agreement;

9.2.2     for the purposes of any legal proceedings (including arbitration); or

9.2.3     in the case of a Temporary Worker who is a member of a professional body, the provision of information to that professional body;

9.3        Nothing in clause 10.2 shall preclude the Employment Business from disclosing information about the Temporary Worker where it is entitled to do so under the provisions of the Employment Agencies Act 1973, the Conduct of Employment Agencies and Employment Business Regulations 2003  (as amended), the Data Protection Act 1998 or as it is otherwise entitled to do so by law.

10. TERMINATION

10.1      Any of the Employment Business, the Temporary Worker or the Customer may terminate the Temporary Worker’s assignment at any time without prior notice or liability.

10.2      The Temporary 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 Customer.  In the event that the contract between the Employment Business and the Customer is terminated for any reason, the assignment shall cease with immediate effect without liability to the Temporary Worker (save for payment for hours worked by the Temporary Worker up to the date of termination of the assignment).

10.3      If the Temporary Worker does not inform the Customer or the Employment Business that they are unable to attend work during the course of an assignment (as required in clause 4.2) this will be treated as termination of the assignment by the Temporary Worker in accordance with clause 10.1, unless the Temporary Worker can show that exceptional circumstances prevented him or her from complying with clause 4.2.

10.4      If the Temporary Worker is absent during the course of an assignment and the assignment has not been otherwise terminated under clauses 10.1 or 10.3 above, the Employment Business will be entitled to terminate the assignment in accordance with clause 10.1 if the work to which the Temporary Worker was assigned is no longer available.

10.5      If the Temporary Worker does not report to the Employment Business  to notify his/her/their availability for work for a period of 3 weeks, the Employment Business will forward his/her/their P45 to his/her/their last known address.

11. INTELLECTUAL PROPERTY RIGHTS

The Temporary Worker acknowledges that all copyright, trademarks, patents and other intellectual property rights deriving from services carried out by him/her/them for the Customer during the assignment shall belong to the Customer.  Accordingly the Temporary 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.

12. CONFIDENTIALITY

12.1      In order to protect the confidentiality and trade secrets of any Customer and the Employment Business  and without prejudice to every other duty to keep secret all information given to it or gained in confidence the Temporary Worker agrees as follows:

12.1.1   not at any time, whether during or after an assignment (unless expressly so authorised by the Customer 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 Customer or the Employment Business with the exception of information already in the public domain;

12.1.2   to deliver up to the Customer or the Employment Business (as directed) at the end of each assignment all documents and other materials belonging to the Customer (and all copies) which are in its possession including documents and other materials created by him/her during the course of the assignment; and

12.1.3   not at any time to make any copy, abstract, summary or précis of the whole or any part of any document or other materials belonging to the Customer 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 Customer or the Employment Business as appropriate;

13. 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.

14. NOTICES

All notices which are required to be given in accordance with this agreement 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. 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.