TERMS OF BUSINESS – INTRODUCTION & SUPPLY OF TEMPORARY WORKERS
- DEFINITIONS & INTERPRETATION
1.1. In these Terms of Business (Terms), the following definitions apply:
Agency Worker means an agency worker within the meaning of the AWR who may be (i) engaged directly by the Company under a contract for services or (ii) employed by an Intermediary under a contract of service;
Assessment means a written assessment, in a format acceptable to the Company, as to whether the Assignment falls within the scope of section 61M of ITEPA;
Assignment means the temporary role or project which the Temporary Worker shall undertake for the Client;
Assignment Schedule means the document confirming details of the Assignment which is issued to the Client by the Company;
AWR means the Agency Workers Regulations 2010;
Charges means the charges made by the Company for the supply of the Temporary Worker including the Temporary Worker’s hourly or daily rate, the Company’s commission and, where relevant, any Employer’s National Insurance contributions, pension contributions, apprenticeship levy, holiday pay and additional monies due pursuant to the AWR;
Client means the person, firm, organisation or company to which the Temporary Worker is Introduced by the Company including, where applicable, any holding, subsidiary, associated or connected company which may Engage the Temporary Worker;
Company means Kenna Recruitment Limited (Registered in England & Wales No. 10473531) of Office C 2nd Floor, 91-93 Buckingham Palace Road, London, SW1W 0RP;
Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
Contractor means a limited company or limited liability partnership supplied by the Company to perform the Services;
Data means personal data and special/sensitive personal data within the meaning of the Data Protection Legislation;
Data Protection Legislation means (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018;
Employee means a director or employee of the Company with whom the Client has had material dealings;
Engagement means the engagement, employment or use of the Temporary Worker by the Client (or relevant third party) on any basis whatsoever, whether directly or through any party other than the Company. Engage, Engages and Engaged shall be interpreted accordingly;
Extended Hire Period means an extension of the Assignment for 20 weeks following expiry of the Client’s notice under clause 9.4;
Intermediaries Legislation means Chapter 10 of Part 2 of ITEPA;
Intermediary means a third-party company which is engaged by the Company to provide an Agency Worker or Subcontractor;
Introduction means (i) the provision by the Company to the Client of a CV or other information which expressly or impliedly identifies a Temporary Worker (ii) the arrangement of an interview or meeting between the Client and a Temporary whether face to face, by telephone or by web/video conference or (iii) the supply of a Temporary Worker; and “Introduces” and “Introduced” shall be interpreted accordingly;
ITEPA means the Income Tax (Earnings and Pensions) Act 2003;
Payment Terms means 30 days from the date of the Company’s invoice;
Public Authority means a public authority within the meaning of section 61L of ITEPA;
Relevant Period means the later of (i) the period of 8 weeks commencing on the day after the Temporary Worker last worked for the Client during an Assignment or (ii) the period of 14 weeks commencing on the first day on which the Temporary Worker worked for the Client during an Assignment but, in determining the first day on which the Temporary Worker worked for the Client, a prior Assignment shall be disregarded where more than 42 days have passed between Assignments;
Remuneration means (i) the gross annualised remuneration package payable to the Temporary Worker by the Client including, without limitation, basic salary, guaranteed and anticipated bonuses, guarantee payments, commission, allowances, all other emoluments and £5,000 in respect of any company vehicle provided to the Temporary Worker or (ii) if the Temporary Worker is Engaged on a self-employed basis, via a personal services company or through any third party company, firm or business, the total estimated annualised fees payable by the Client in respect of the Temporary Worker’s services;
Recruitment Services means the Introduction and supply of Temporary Workers to the Client by the Company;
Representative means the director, officer or employee of a Contractor who performs the Services on behalf of the Contractor;
Restricted Period means the later of (i) six months from the end of the Assignment or (ii) twelve months from the most recent Introduction of the Temporary Worker to the Client;
SDC means supervision, direction or control as to the manner in which the Services are carried out;
Services means the work to be carried out by the Temporary Worker during the course of the Assignment as described in the Assignment Schedule;
Subcontractor means a self-employed person, engaged directly by the Company through an Intermediary;
Temporary Worker means the person, firm or limited company Introduced to the Client by the Company to perform an Assignment and, save where otherwise indicated, includes a Contractor, Representative, Subcontractor and Agency Worker;
Transfer Fee means the fee payable by the Client upon the Engagement of a Temporary Worker pursuant to clause 9; and
WTR means the Working Time Regulations 1998.
1.2 Unless the context requires otherwise, references to the singular include the plural and references to the masculine include the other genders.
1.3 Any reference to a person includes both a legal person and a natural person.
1.4 A reference to a party means either the Company or the Client and a reference to the parties means both the Company and the Client.
1.5 Any phrase introduced by the words including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those words.
1.6 Any reference to legislation includes any amendment or re-enactment of such legislation from time to time and any secondary legislation which may be made under such legislation.
1.7 The headings in these Terms are for convenience only and do not affect the interpretation of any clause.
- THE TERMS
2.1 These Terms, together with the Assignment Schedule, comprise the entire agreement between the parties for the supply of a Temporary Worker to the Client to the exclusion of any alternative terms which are proposed or issued by the Client unless otherwise agreed in writing by a director of the Company. In the event of any conflict or inconsistency between the documents, the Assignment Schedule shall take priority.
2.2 No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director of the Company and the Client, are set out in writing and a copy of the varied Terms is given to the Client stating the date on or after which such varied Terms shall apply.
2.3 These Terms shall be deemed to have been accepted by the Client upon signing them or otherwise expressly indicating their acceptance in writing, instructing the Company to supply a Temporary Worker or Engaging the Temporary Worker, whichever occurs first.
2.4. These Terms shall apply to any Introduction which is made by the Company on the basis that the Temporary Worker shall be supplied to the Client by the Company on a temporary basis. If, at the time the Temporary Worker is Introduced, the Client has not confirmed whether they intend to engage a Temporary Worker (i) directly on a permanent/fixed term basis or (ii) indirectly through the Company as a Temporary Worker, the Company’s permanent terms of business shall take priority over these Terms and the Temporary Worker shall be deemed to be a Candidate under those Terms.
2.5. Unless the Company notifies the Client that a Temporary Worker has opted-out of the Conduct Regulations, the Conduct Regulations shall apply to any Assignment carried out by a Temporary Worker.
2.6. For the purposes of the Conduct Regulations, the Company shall act as an employment business when providing Recruitment Services under these Terms.
3.1. The Company shall provide Recruitment Services to the Client and use reasonable endeavours to Introduce Temporary Workers from time to time who:
3.1.1. Meet the criteria specified by the Client pursuant to clause 4.1 where applicable; or
3.1.2. The Company believes may otherwise be of interest or relevance to the Client.
- PROVISION OF INFORMATION
4.1. The Client must inform the Company of:
4.1.1. The information relating to an Assignment specified in Regulation 18 of the Conduct Regulations;
4.1.2. Whether the Temporary Worker requires a DBS disclosure or any other check or clearance to carry out the Assignment;
4.1.3. Any Health and Safety information which is relevant to the Assignment;
4.1.4. Such Information as the Company may require to comply with the WTR and the Client shall do nothing to cause the Company to breach the WTR; and
4.1.5. Any reason why it may be detrimental to the interests of the Temporary Worker to carry out the Assignment.
4.2. If requested by the Company, the Client shall provide all such information as the Company shall require to determine whether or not a Temporary Worker shall be subject to SDC during an Assignment. The Client acknowledges that the Company shall rely upon any such information which is provided and the Client warrants that such information shall be accurate.
4.3. If the Client is a Public Authority or the Assignment otherwise falls within the scope of Chapter 10 of Part 2 of ITEPA, the Client must:
4.3.1. Notify the Company of this information without delay;
4.3.2. Provide an Assessment to the Company prior to commencement of the Assignment where requested by the Company;
4.3.3. Ensure that any Assessment provided to the Company is accurate; and
4.3.4. Provide all such information as the Company may reasonably require, without delay, to justify or support the Assessment.
4.4. The Client shall indemnify and keep indemnified the Company against any liability for PAYE income tax or National Insurance contributions (including any penalties) suffered or incurred by the Company in relation to any Temporary Worker where the Client (i) provides an inaccurate Assessment (ii) fails to provide an Assessment or (iii) fails to comply with clause 6.7.
4.5. The Company shall issue an Assignment Schedule to the Client on commencement of the Assignment or otherwise within three business days of its commencement.
- TEMPORARY WORKER CHECKS
5.1. The Company shall:
5.1.1. Take all reasonably practicable steps to ensure that the Temporary Worker and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Temporary Worker to enable the Temporary Worker to perform the Assignment;
5.1.2. Make all such reasonably practicable enquiries to ensure that it would not be detrimental to the interests of the Temporary Worker or the Client for the Temporary Worker to perform the Assignment for the Client;
5.1.3. Where Client has informed the Company that the Assignment involves working with, caring for or attending a vulnerable person, take all reasonably practicable steps to:
184.108.40.206. Obtain copies of any relevant qualifications or authorisations of the Temporary Worker and offer to provide copies of those documents to the Client;
220.127.116.11.Obtain two references from persons who are not relatives of the Temporary Worker and who have agreed that the reference provided may be disclosed to the Client; and
18.104.22.168. Confirm that the Temporary Worker is suitable for the position concerned.
- CLIENT OBLIGATIONS
6.1. The Client must:
6.1.1. Provide a safe working environment for the Temporary Worker;
6.1.2. Ensure that, where applicable, the Temporary Worker uses all necessary safety and personal protective equipment during the Assignment;
6.1.3. Comply with all statutory provisions, by-laws, codes of practice and other legal obligations in respect of the Temporary Worker’s health and safety whilst carrying out an Assignment;
6.1.4. Maintain records of any accident or injury affecting the Temporary Worker and provide copies of such records to the Company upon demand;
6.1.5. Unless otherwise agreed with the Company, ensure that the Temporary Worker is insured under the Client’s own insurance policies; and
6.1.6. Indemnify the Company for any claim arising out of or in connection with the death or personal injury of the Temporary Worker in the course of or as a result of an Assignment.
6.2. The Client must not and must ensure that its employees, subcontractors and representatives do not unlawfully discriminate against, harass or victimise any Temporary Worker.
6.3. The Client must comply with the AWR and assist the Company in complying with the AWR by, without limitation:
6.3.1. Notifying the Company without delay if the Agency Worker has been supplied to the Client by any other Company in the six-month period prior to commencement of the Assignment;
6.3.2. Providing the Agency Worker with access to collective facilities and amenities and information about permanent employment opportunities with the Client;
6.3.3. Where relevant, providing written details to the Company of the relevant terms and conditions which apply to any actual or hypothetical comparator to the Agency Worker together with any amendments to such terms and conditions where appropriate;
6.3.4. Co-operating with the Company in responding to or assisting the Company with responding to any question or complaint made under the AWR in a timely manner;
6.3.5. Permitting a pregnant Agency Worker to attend ante-natal appointments, with pay, during working time after the 12-week qualifying period;
6.3.6. Carrying out a risk assessment in respect of any pregnant Agency Worker and making such adjustments to the Assignment as are necessary to protect the Agency Worker’s health and wellbeing or, where necessary, identifying a suitable alternative Assignment within the Client’s organisation for the Agency Worker to perform; and
6.3.7. Agreeing to a proportional increase in the Charges where necessary to ensure that the Agency Worker receives equal treatment in respect of all relevant terms and conditions after the 12-week qualifying period.
6.4. Subject to clause 6.8, the Client acknowledges that a Contractor may appoint an alternative Representative to perform the Services from time to time and, subject to verifying that the alternative Representative is equally skilled, qualified, security cleared and able to perform the Services, the Client shall accept the appointment of such alternative Representative.
6.5. Subject to clause 6.8, the Client shall not move any Contractor or Subcontractor to a different task or project or otherwise materially vary the Assignment without first agreeing such move or variation with the Company.
6.6. Subject to clause 6.8, the Client acknowledges that a Contractor or Subcontractor shall determine their own schedule when performing the Services and the location in which such Services are performed, subject to the Client’s reasonable operational requirements and the specific nature of the Assignment.
6.7. Subject to clause 6.8, the Client shall not exercise or permit any third party to exercise SDC (or assert the right thereof) over any Contractor or Subcontractor during an Assignment. Nothing in this clause shall affect the Client’s obligations under clause 6.1.
6.8. Clauses 6.4 – 6.7 shall not apply where the parties have agreed that the Assignment (ii) falls within the scope of section 61M of ITEPA or (ii) otherwise falls within the Intermediaries Legislation.
6.9. The Client must not request the supply of a Temporary Worker to perform the duties normally performed by (i) a worker who is taking part in official industrial action or (ii) a worker who has been transferred by the Client to perform the duties of a person taking part in official industrial action.
6.10. The Client must notify the Company immediately if the Client intends to Engage a Temporary Worker, extend an Assignment or otherwise vary an Assignment in any way.
7.1. At the end of each week of an Assignment (or at the end of the Assignment where it is for a period of one week or less), the Client shall approve a timesheet in a format specified by the Company verifying the times worked by the Temporary Worker during that week.
7.2. The Client is responsible for ensuring that the times shown on the Temporary Worker’s timesheet are correct and that only duly authorised employees approve the timesheet.
7.3. If the Client is unwilling to approve a Temporary Worker’s timesheet because the Client disputes the time claimed to have been worked, the Client shall inform the Company as soon as reasonably practicable and shall provide all such information as the Company shall require, without delay, to enable the Company to establish the time which was actually worked by the Temporary Worker.
7.4. The Client acknowledges that the Company shall rely upon the Client’s confirmation of the time worked by the Temporary Worker and the Client shall not retrospectively adjust the time confirmed as having been worked by the Temporary Worker.
7.5. The Client must not refuse to approve a timesheet on the basis that the Client is dissatisfied with the Services or any other matter relating to the Temporary Worker but the Client may be entitled to terminate the Assignment in accordance with clause 10
8.1. The Client shall pay the Charges to the Company as specified in the Assignment Schedule.
8.2. The Company shall issue an invoice to the Client for the Charges each week and such invoice shall be payable within the Payment Terms. VAT shall be charged at the standard rate on all sums invoiced under these Terms.
8.3. The Company may vary the Charges, by giving written notice to the Client, to reflect any additional cost in supplying the Temporary Worker for any reason including, without limitation, the AWR or a legislative change.
8.4. The Company shall not give any refund or rebate in respect of the Charges and, save as required by law, the Client shall pay the Charges without set off or deduction for any reason including, without limitation, the CITB levy or any defect in the Services.
8.5. If an invoice is not paid within the Payment Terms, the Company may:
8.5.1. Terminate the supply of Temporary Workers to the Client without notice;
8.5.2. Charge late payment compensation on such invoice in accordance with the Late Payment of Commercial Debts (Interest) Act 1998;
8.5.3. Charge interest at the rate of 6% per annum above the base rate of the Bank of England from the due date until the date of payment; and
8.5.4. Refer the collection of such payment to its legal representatives and, in such circumstances, the Client shall be liable for all costs, fees (including legal fees on an indemnity basis), charges and disbursements incurred by the Company in recovering payment from the Client.
8.6. The Company shall be responsible for making all payments to the Temporary Worker for the Services.
8.7. If the Client makes an offer of employment or engagement to an Employee and the Employee commences such employment or engagement within 6 months of leaving the Company’s employment, the Client shall pay a fee to the Company, which shall be a sum equivalent to 25% of the Employee’s gross annualised remuneration in the last year of the Employee’s service with the Company. The fee shall be payable by the Client within the Payment Terms and the Client shall not be entitled to a refund if the employment or engagement terminates for any reason.
- TRANSFER FEES
9.1. Subject to clause 4, the Client shall pay a Transfer Fee if the Client (i) Engages a Temporary Worker Introduced by the Company or (ii) introduces the Temporary Worker to a third party who Engages the Temporary Worker and:
9.1.1. Where the Company has not supplied the Temporary Worker to the Client, such Engagement commences within the Restricted Period;
9.1.2. Where the Company has supplied the Temporary Worker to the Client and the Temporary Worker has not opted out of the Conduct Regulations, such Engagement commences within the Relevant Period; or
9.1.3. Where the Company has supplied the Temporary Worker to the Client and the Temporary Worker has opted out of the Conduct Regulations, such Engagement commences within the Restricted Period.
9.2. The Transfer Fee shall be a sum equivalent to 25% of the Remuneration payable to the Temporary Worker in the first calendar year of the Engagement.
9.3. If the Remuneration is not disclosed to the Company or if it is impracticable to calculate the Remuneration, the Transfer Fee shall be the hourly Charge at which the Temporary Worker was (or would have been) supplied to the Client multiplied by 350.
9.4. Unless Temporary Worker has opted out of the Conduct Regulations, the Client may, instead of paying the Transfer Fee, by giving one week’s written notice to the Company, request that the Temporary Worker provides the Services for the Extended Hire Period commencing on the date on which such written notice expires.
9.5. During the Extended Hire Period, the Company shall supply the Temporary Worker:
9.5.1. On terms no less favourable than the terms which applied immediately before the Company received the notice pursuant to clause 9.4; or
9.5.2. Where the Company has not previously supplied the Temporary Worker to the Client, on such terms as the Company may reasonably specify.
9.6. If the Company is unable to supply the Temporary Worker for any part of the Extended Hire Period for a reason outside of the Company’s control or if the Client does not wish to hire the Temporary Worker on the terms as set out in clause 9.5, the Client shall pay the Transfer Fee, reduced in proportion to any part of the Extended Hire Period for which the Temporary Worker was supplied by the Company following expiry of the Client’s written notice under clause 9.4.
9.7. No refund of the Transfer Fee will be given by the Company for any reason.
- CONFIDENTIALITY, DATA PROTECTION & ANTI-CORRUPTION
10.1 The Client acknowledges that, unless otherwise agreed between the parties in writing, the Company and the Client shall each act as data controllers in respect of any Data relating to a Temporary Worker and the Client must:
10.1.1. Control and process such Data in accordance with the Data Protection Legislation;
10.1.2. Provide to the Temporary Worker the information specified under Article 14 of the GDPR and, if requested by the Client, the Company shall use reasonable endeavours to assist the Client in this regard; and
10.1.3. Notify the Company without delay if any Data relating to a Temporary Worker which has been supplied by the Company is subject to a Data breach at any time prior to such Temporary Worker completing an Assignment with the Client.
10.2. Save to the extent that the Company is required to disclose such information to the Temporary Worker, the Company shall keep confidential any information provided by the Client in relation to the AWR and not use it for any other purpose.
10.3. The parties warrant that they shall:
10.3.1. Comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; and
10.3.2. Promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with these Terms.
11.1. Subject to clauses 11.2, 11.3 and 11.4, either party may terminate an Assignment at any time by giving the notice specified in the Assignment Schedule or, if no period of notice is specified, at any time without notice.
11.2. Irrespective of any notice period specified in the Assignment Schedule, either party may terminate an Assignment without notice if the other party has committed a serious or persistent breach of its obligations under these Terms, if the other party undergoes a change of control or becomes insolvent.
11.3. The Company may terminate an Assignment without notice if it becomes aware of any reason why the Temporary Worker is unsuitable to carry out the Assignment.
11.4. The Company shall not be liable if the Temporary Worker fails to give the agreed notice, if any, upon terminating the Assignment.
11.5. Either party may terminate the provision of Recruitment Services by the Company at any time by notifying the other party in writing.
11.6. Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by the Company prior to such termination
12.1. Whilst the Company shall use reasonable endeavours to Introduce Temporary Workers to the Client, the Company shall not be liable if it does not Introduce a Temporary Worker.
12.2. The Client shall be responsible for the supervision, direction and control of an Agency Worker during their Assignment.
12.3. The Company shall not be liable for (i) the acts or omissions of any Temporary Worker (ii) any loss, theft or damage to any tools, equipment or other property issued to or used by the Temporary Worker during the Assignment or (iii) the performance or non-performance of the Services.
12.4. In the event of any error or defect in Services which are performed by a Contractor or Subcontractor and notified to the Company, the Company shall require the Contractor or Subcontractor to remedy such error or defect in its own time and at its own expense. The Company shall not however be liable to the Client if the Contractor or Subcontractor refuses or fails to remedy such error or defect.
12.5. The Company shall not be liable to the Client for any indirect or consequential losses or for any loss of profit, business, reputation or goodwill howsoever arising.
12.6. Subject to clause 12.7, the aggregate liability of the Company to the Client in respect of any claim or series of claims arising out of or in connection with these Terms, and whether arising in contract, tort (including negligence), breach of statutory duty or otherwise shall be limited to 10% of the Charges paid by the Client in relation to the relevant Temporary Worker in the three-month period immediately prior to such claim arising or, if there was no supply of a Temporary Worker or if the claim does not relate directly to the supply of a Temporary Worker, the sum of £5,000.
12.7. The Company does not limit or exclude liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation or for any other claim which may not be limited or excluded by law.
12.8. All warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.
12.9. Any claim which the Client may bring against the Company pursuant to these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.
12.10. The Client shall indemnify and keep indemnified the Company against all losses, damages or claims suffered or incurred by the Company as a result of the Client’s breach of contract, negligence (or any other tortious act), breach of statutory duty or otherwise.
- GENERAL PROVISIONS
13.1. The Client shall not assign any of its rights or obligations under these Terms without the written consent of the Company.
13.2. The Company may assign any monies owing from the Client to a third party including, without limitation, a recruitment finance or factoring company and, if relevant, the right to receive payment under these Terms may be enforced by such third party.
13.3. Subject to clause 13.2, the parties do not intend these Terms to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
13.4. If any part of these Terms is determined by a competent authority to be unenforceable to any extent, such part shall, to that extent, be severed from these Terms, which shall continue to be valid to the fullest extent permitted by law.
13.5. No failure or delay by a party in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.6. Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of their obligations under these Terms if such delay or failure result from events, circumstances or causes beyond their reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
13.7. These Terms shall be interpreted in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising in relation to the construction, interpretation or performance of these Terms.