Standard Terms of Business for the supply of temporary workers and contractors

These Detailed Terms of Business of Ace Healthcare Recruitment Limited of Business And Technology Centre Room S04, The Business & Technology Centre, Bessemer Drive, Stevenage, England, United Kingdom, SG1 2DX (company number: 15893412)  (“The Employment Business”) apply to all business conducted between the parties from the date on which you, the Client, receive notice of these terms, whether or not they are signed, unless otherwise agreed in accordance with the procedure for variations set out herein and supersede any previous terms between the parties. If you wish to reject or amend any of the terms hereof please contact us immediately upon receipt with your proposals otherwise these terms will be deemed accepted without amendment or variation upon reasonable notice.

1. Definitions

In these Terms –

1.1 “Assignment” means the services to be performed by the Temporary Worker or Contractor on behalf of the Client for a period of time during which the Temporary Worker or Contractor shall be supplied by the Employment Business;

1.2 “Assignment Notice” means a written document or set of documents setting out the details of the Assignment, ostensibly in the form set out in Appendix 2;

1.3 “Contractor” means any company Introduced by the Employment Agency to the Client to perform an Assignment;

1.4 “Contractor Staff” means any person(s) who will actually perform the work constituting the Assignment and who is either an officer, employee or other worker of the Contractor and who may be replaced or substituted by the Contractor;

1.5 “Charges” means the Rates charged by the Employment Business during an Assignment multiplied by the amount of time worked and any Transfer Fee due;

1.6 “Client” means you, the person, firm or corporate body to whom the Employment Business is to Introduce a Temporary Worker or Contractor;

1.7 “End User” means any other company or entity that is a subsidiary or associate of or is connected with the Client in accordance with s. 1159 of the Companies Act 2006, s. 249 of the Insolvency Act 1986 and s.416 of the Income and Corporation Taxes Act 1988 and which in any way uses or Engages a Temporary Worker, Contractor or Contractor Staff;

1.8 “Engagement” means the direct employment or use in any way of a Temporary Worker, Contractor or Contractor Staff by the Client or by any End User to whom or to which the Contractor or Contractor Staff was Introduced by the Client (with or without the Employment Business’s knowledge or consent) on a permanent, temporary, fixed-term, contract, trial or probationary basis, howsoever engaged (whether directly or indirectly via another agency) in any position or post, and an offer of employment and acceptance of an offer of employment by the Temporary Worker, Contractor or Contractor Staff whether or not employment is actually commenced; and the words “Engages” and “Engaged” shall be construed accordingly;

1.9 “Introduction” means 

 1.9.1 the Employment Business’s provision of a curriculum vitæ or any previous or subsequent information to the Client, identifying a Temporary Worker, Contractor and/or Contractor Staff or which refers to a Temporary Worker, Contractor or Contractor Staff who has already been identified or previously Introduced; or

 1.9.2 the interview of a Temporary Worker, Contractor or Contractor Staff in person or by any remote means; 

 1.9.3 any further communications between the Employment Business, Client and/or Temporary Worker, Contractor or Contractor Staff regarding the Assignment or any other assignment or vacancy up to the moment of the Assignment.

The time of the Introduction shall be the later of (1)-(3) above; and “Introduced” and “Introduces” shall be construed accordingly;

1.10 “Legislation” shall mean the Agency Workers Regulations and 2003 Conduct of Employment Agencies and Employment Business Regulations 2003 (as amended) in relation to Temporary Workers;

1.11 “Rate” means the gross daily charge-out rate for a Temporary Worker, Contractor or Contractor Staff set out in Appendix 1 below and/or the Assignment Notice or separate rate sheet, used for calculating Charges and, where appropriate and agreed, shall include the amount payable by the Employment Business to the Contractor and the Employment Business’s charge for its administrative services and services as intermediary without any breakdown into its constituent parts;

1.12 “Relevant Period” in the case of Temporary Workers who are Introduced but not supplied, Contractors, Contractor Staff and means 12 months from the latest of the time of Introduction or end of the Assignment if applicable. In the case of a Temporary Workers who is supplied the Relevant Period is any such period specified in the Legislation;

1.13 “Remuneration” means the Temporary Worker’s, Contractor’s or Contractor Staff’s annualised base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, shift allowances, location weighting and call-out allowances, the benefit of a company car and all other payments or emoluments payable to or receivable by the Temporary Worker, Contractor or Contractor Staff for services rendered to or on behalf of the Client. Where the Client provides a company car, a notional amount of £5000 will be added to the salary in order to calculate the Employment Business’s Fee;

1.14 “Temporary Worker” means a natural person to be supplied to the Client to perform an Assignment;

1.15 “Transfer Fee” means a fee payable where a Temporary Worker, Contractor or Contractor Staff is Engaged by the Client, End User or qualifying 3rd party within the Relevant Period or prior to supply (“Introduction Fee”).

2. General Terms

2.1 These Terms constitute the entire agreement between the Employment Business and the Client in relation to the subject -matter  hereof  and  are  deemed  to be accepted by the Client and to apply by virtue of (a) their provision to the Client by e-mail or otherwise or being made available to the Client by providing an electronic link or by reference, without negotiation, amendment or replacement with alternative, expressly agreed terms; or (b) an Introduction or supply to or Engagement by the Client of a Temporary Worker, Contractor or Contractor Staff; or (c) the Client’s interview or request to interview a Temporary Worker, Contractor or Contractor Staff; or (d) the Client’s signature at the end of these Terms, in which case the person signing on behalf of the Client shall be deemed to have actual authority to sign them on the Client’s behalf; or (e) any other written expressed acceptance of these Terms, whether by e-mail or otherwise; or (f) payment of any Fee to the Employment Business. The Terms supersede all previous agreements between the parties in relation to the subject matter hereof.

2.2 The parties agree to abide by the Legislation in respect of Temporary Workers and, where appropriate, Contractor Staff.

2.3 These Terms prevail over any other terms of business or purchase conditions proposed by the Client.

3. Assignments

3.1 From time to time the Client may notify the Employment Business of a requirement for a Temporary Worker or Contractor to perform services of a specified type on a temporary basis for a specified period or on an on-ongoing basis. 

3.2 The Client shall provide exhaustive details of the temporary vacancy to be filled, including without limitation location, rate of pay, working hours and other conditions and whether the role involves work with Vulnerable Persons as well as sufficient details of the Contractor/Contractor Staff/Temporary Worker being sought to enable the Employment Business to identify Contractor/Contractor Staff/Temporary Workers who appear to meet the client’s requirements.

3.3 The Client shall specify whether the worker being sought will be under its supervision, control and direction and make use of the Client’s tools and equipment in performance of the Assignment (for a Temporary Worker) or whether the worker being sought will perform the work without supervision, control and direction i.e. will have full discretion regarding the manner and means of performance of the Assignment using its own tools and equipment (for a Contractor and Contractor Staff). 

3.4 The Employment Business shall use its reasonable endeavours to Introduce a Temporary Worker and/or Contractor and where applicable Contractor Staff to meet the client’s requirements and specify the relevant Rate for supplying them. 

3.5 For the avoidance of doubt, unless specified otherwise, all Contractors have opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 including in respect of Contractor Staff;

3.6 In the event of Contractors that are umbrella companies, the Contractor is represented by the Contractor Staff.

3.7 If the Client deems a Temporary Worker or Contractor or where applicable Contractor Staff to be suitable and agrees to the Rates, the Employment Business shall issue an Assignment Notice to the Client specifying the details of the Assignment; 

3.8 The parties take the view that no NI or tax liability arises in respect of a Contractor under the off-payroll working rules i.e., NI and tax liabilities of the Contractor and Contractor Staff are payable by the Contractor directly; 

3.9 Notwithstanding the foregoing, where the Temporary Worker or Contractor Staff falls within the status determination requirements of the off-payroll working rules, the Client shall comply at all times as fee-payer with the status determination requirements including filing any Status Determination Statement (SDS) and no NI or tax liability or reporting requirement shall arise on the part of the Employment Business.

3.10 The commencement of an Assignment by a Temporary Worker or Contractor shall constitute acceptance of the Assignment by the Client, including Rates and confirmation that it deems the Temporary Worker, Contractor and where applicable the Contractor Staff to be suitable to perform the Assignment; 

3.11 The Employment Business reserves the right to reasonably increase the Rates by giving appropriate written notice to the Client, which will apply if the Assignment is extended;

3.12 During an Assignment, the Client shall:

 3.12.1 ensure compliance with and assist the Employment Business to comply with the Legislation where relevant;

 3.12.2 provide all means, tools, devices, vehicles and support for a Temporary Worker to perform the Assignment, whilst ensuring that all the above are in safe and in good working order and compliant with all legislation, norms and standards;

 3.12.3 be solely responsible for training, supervising and instructing a Temporary Worker and instructing a Contractor as regards the work to be undertaken under the Assignment to the extent reasonably necessary to ensure that the Client’s objectives are being achieved;

 3.12.4 be solely responsible for the Temporary Worker’s or Contractor Staff’s  health and safety;

 3.12.5 not allow the Temporary Worker or Contractor Staff to perform any dangerous or hazardous work without first ensuring compliance with all health and safety at work procedures and obtaining the worker’s consent to perform such work;

 3.12.6 maintain sufficient insurance cover including but not limited to Employer’s insurance for Temporary Workers and Contractors;

 3.12.7 ensure that it has made contingency plans for any period of annual leave or sick leave to be taken the Temporary Worker or Contractor Staff, provided that the Temporary Worker or Contractor Staff should notify the Client as soon as practicable of any absence due to sickness;

 3.12.8 maintain and respect the confidentiality of the terms of the Assignment and any other aspect of the Temporary Worker’s or Contractor’s relationship with the Employment Business, in particular by refraining from discussing the Charges and Rates with the Temporary Worker or Contractor Staff; 

 3.12.9 perform a workplace risk assessment and remove any risk if a risk to health and safety is likely;

 3.12.10 ensure that Temporary Workers and/or Contractor Staff have the same rights to facilities and services as permanent members of the Client’s staff in accordance with the Legislation;

 3.12.11 ensure that Temporary Workers and/or Contractor Staff have equal treatment as permanent members of the Client’s staff after 12 weeks in accordance with the Legislation;

 3.12.12 notify the Employment Business of the rates of pay of permanent members of the Client’s staff performing the same or comparable work after 12 weeks in the Assignment and agree to adjust the Temporary Worker’s or Contractor’s rate of pay to the same level.

3.13 For the avoidance of doubt, the Employment Business will not be responsible for organising work permits, insurance, or any other incidental needs related to the hire of a Temporary Worker.

4. Rates

The Employment Business’s Rates will be specified in the “Assignment Notice” unless agreed separately. 

5. Remedies if a Temporary Worker, Contractor or Contractor Staff are deemed unsuitable

5.1 If the Client reasonably believes that a Temporary Worker, Contractor or where applicable Contractor Staff is in any way no longer suitable to perform the Assignment, it shall notify the Employment Business immediately in writing with full details of its grounds, at the latest by the end of the same business day, terminate the Assignment with the relevant notice period specified in the Assignment Notice and allow the Employment Business 5 business days to introduce a replacement Temporary Worker or Contractor or where applicable Contractor Staff to continue performance of the Assignment, without right to any reduction of the Charges.

5.2 For the avoidance of doubt, in light of the fact that the Client originally deemed the Temporary Worker or Contractor or where applicable Contractor Staff to be suitable, the Client shall be liable to pay all Charges until the end of the notice period for terminating the Assignment without deduction or set-off. 

5.3 The Employment Business makes no representation that it can provide a replacement Temporary Worker, Contractor or where applicable Contractor Staff to continue performance of an Assignment and if it is unable to do so, the Assignment shall end immediately without liability on the part of the Employment Business for any alleged loss incurred by the Client.

6. Charges and Records of time

6.1 Charges shall be calculated based on the amount of time spent by the Temporary Worker, Contractor or Contractor Staff at the Client’s place of work to the nearest ¼ hour, (“Working Time”) multiplied by the Rate set for the Assignment in the Assignment Notice and any reasonable business expenses incurred by the Temporary Worker or Contractor or Contractor Staff in performance of the Assignment. 

6.2 The Employment Business will charge VAT on Charges at the applicable rate.

6.3 The Contractor/Contractor Staff/Temporary Worker’s Working Time shall be recorded solely by means of completed timesheets provided weekly by the Employment Business and/or Temporary Worker, Contractor or Contractor Staff on paper or electronically (“Timesheets”), unless agreed otherwise in writing.

6.4 A Timesheet confirmed in the manner set out in this clause shall constitute conclusive evidence of the number of hours worked for the purposes of calculating the Charges.

6.5 The Client shall confirm the Working Time contained in Timesheets by i) signing them or ii) otherwise approving them to the Contractor and/or Employment Business or iii) not raising any query regarding them in writing to the Employment Business within 2 working days of receipt (the “Query Deadline”) with reliable documentary evidence of a shorter Working Time on particular days, to be assessed at the Employment Business’s absolute discretion. 

6.6 Any person who signs the Timesheets on the Client’s behalf shall be deemed to have had sufficient knowledge of the Contractor’s Working Time to verify them and to have actual authority to sign them on behalf of the Client. 

6.7 If the Client queries any Timesheet appropriately within the Query Deadline, it shall promptly pay the Charges for any unqueried part of any Timesheet within the payment terms and the Employment Business will consider the query as soon as possible. If the Employment Business, acting with absolute discretion, believes that the query is clearly groundless, for example due to the absence of reliable documentary evidence in support, the Charges will be payable within the payment terms as usual, otherwise the parties shall attempt to resolve the dispute in good faith as soon as possible and within 2 weeks at the latest. 

6.8 For the avoidance of doubt, as the Temporary Worker, Contractor or where applicable Contractor Staff has been accepted by the Client as suitable to perform the Assignment, the Client may not query the Working Time in the Timesheet on the grounds that they were unsuitable or has not performed their duties under the Assignment correctly or has caused loss. The Client’s sole remedy if it believes a Temporary Worker, Contractor or where applicable Contractor Staff to be unsuitable or unable to perform the Assignment to the necessary standard is to terminate the Assignment and/or request a replacement Temporary Worker, Contractor or where applicable Contractor Staff from the Employment Business as set out above.  

6.9 No refunds or rebates are payable in respect of Charges.

7.Transfer Fees and Extended Periods of Hire

7.1 Where the Client wishes to Engage a Temporary Worker [*this clause does not apply to Contractors who have opted out of the 2003 Conduct Regulations], it shall notify the Employment Business in advance and either pay a Transfer Fee or agree to an extended period of hire amounting to 12 months (the “Notice of Intended Engagement”), unless a different period is specified in the Appendix or Assignment Notice, commencing the next business day after a valid Notice of Intended Engagement is received by the Employment Business.  

7.2 At the end of the Extended Period of Hire, the Client may Engage the Temporary Worker without incurring a Transfer Fee provided that it has paid all Charges in respect of the Temporary Worker by the date of Engagement, otherwise a Transfer Fee shall apply.  

7.3 Subject to the foregoing, where the Client Engages a Temporary Worker, Contractor or where applicable Contractor Staff, other than through the Employment Business, at any time within the Relevant Period, it shall pay a Transfer Fee to the Employment Business. 

7.4 Where a Temporary Worker, Contractor or Contractor Staff is Engaged by an End User or other related 3rd party within the Relevant Period, the Contractor or Contractor Staff shall be deemed to have been Introduced to such End User or 3rd party by the Client and the Employment Business may charge the Client a Transfer Fee. 

7.5 Notwithstanding the foregoing the Employment Business may charge the Client a Transfer Fee where a Temporary Worker, Contractor or Contractor Staff is Introduced to the Client and Engaged by the Client or End User before being supplied by the Employment Business.

7.6 The Transfer Fee shall amount to 30% of annualised Remuneration unless a different percentage is set out in the Appendix or 300 times the gross hourly Rate, at the Employment Business’s sole discretion.

7.7 For the purposes of calculating the Transfer Fee for a Temporary Worker, Contractor or where applicable Contractor Staff, Remuneration may be calculated on the basis of the following, at the Employment Business’s absolute discretion: a) the Employment Business’s latest Rate for the Contractor during the Engagement multiplied by 40 hours and 52 weeks to obtain annualised Remuneration; or b) the highest, annual or annualised Remuneration payable on the market for the work performed in the course of the Assignment; or c) the highest, annual or annualised Remuneration payable on the market for the work performed in the post in which the Contractor or Contractor Staff has been Engaged, as estimated by the Employment Business at its absolute discretion. 

7.8 Transfer Fees are not subject to refund or rebate on any basis. 

7.9 For the avoidance of doubt, an invoice is not required for a Transfer Fee to fall due once an Engagement has occurred and interest on the Transfer Fee shall accrue hereunder from the time of Engagement. 

7.10 There is no requirement for an Introduction or Assignment to be the effective cause of an Engagement and any implied term to that effect is hereby disapplied and excluded. 

8. Confidentiality

8.1 All information contained within these Terms, any Introduction and correspondence between the parties shall remain confidential and the Client shall not divulge it to any Temporary Worker, Contractor or End User, save as reasonably necessary for its own employees and professional advisers and as may be required by law.

8.2 The Client shall not without the prior written consent of the Employment Business provide any information in respect of the Temporary Worker, Contractor or Contractor Staff to any third party or End User whether for employment purposes of otherwise.

9. Payment terms

9.1 The Client agrees to pay any Charges due to the Employment Business within the number of days specified in Appendix 1 or within 14 days of invoice, time being of the essence. 

9.2 All invoices will be deemed to be accepted in full by the Client in accordance with the payment terms unless the Client notifies the Employment Business in writing within 5 days of receipt of an invoice of a) the amount the Client disputes and b) the reason the Client disputes that amount (subject to the deadlines for disputing Working Time in Timesheets). 

9.3 In the event that the Client notifies the Employment Business that it disputes part of an invoice, the Client shall pay the undisputed part of the invoice without set-off within the payment terms and shall co-operate fully with the Employment Business in order to resolve the dispute as quickly as possible.

9.4 In the event that any amount is not paid by the Client within the payment terms, the Employment Business may charge either of the following at its sole discretion: a) contractual interest of 2% per month on any outstanding amounts b) late fees, debt recovery fees of 10% and interest on any amounts due at the statutory rate of 8% above base rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (the “LPCDIA”) as amended, which shall also apply in the event that the Client is an individual. The Client accepts that a debt recovery charge of 10% of the overdue amount is reasonable for the purposes of the LPCDIA where a debt recovery agency is engaged.

9.5 The Employment Business may withdraw credit at any time and demand immediate payment of any outstanding amount. 

9.6 The Client may not claim to set-off, deduct or withhold any amount purportedly payable by the Employment Business to the Client against any amount due to the Employment Business hereunder. 

10. Liability and Indemnity

10.1 The Client’s acceptance or Engagement of a Temporary Worker and/or Contractor or Contractor Staff constitutes confirmation that the Client has performed all necessary checks and tests as a prudent employer and taken up all necessary references to deem that the Temporary Worker, Contractor and where applicable Contractor Staff is suitable for the Assignment. 

10.2 The Employment Business shall not be liable under any circumstances for any loss, expense, damage, delay, fines, costs or compensation (whether direct, indirect or consequential) which may be suffered or incurred by the Client arising from or in any way connected with the supply or Engagement of any Temporary Worker, Contractor and Contractor Staff or the performance of work by a Temporary Worker, Contractor and Contractor Staff.

10.3 Without prejudice to the foregoing, the Employment Business’s liability for any loss, expense, damage, delay, costs or compensation (whether direct, indirect or consequential) which may be suffered or incurred by the Client shall be limited to the value of any Charges for one week of supply paid by the Client.

10.4 The Client is not authorised to accept any penalty charge or fine imposed by any authority on behalf of any Temporary Worker, Contractor and Contractor Staff. Any alleged offence committed by a Temporary Worker, Contractor or Contractor Staff shall be brought to their attention and addressed exclusively by them. For the avoidance of doubt, the Employment Business accepts no liability in respect of any penalty charges or fines imposed on Contractors and Contractor Staff. 

10.5 The Client shall indemnify and keep indemnified the Employment Business from and against all loss or liability suffered or incurred by a Temporary Worker, Contractor or Contractor Staff as a result of any claim arising out of any injury or damage to his/her person and/or property suffered in the course of performing the Services;

10.6 Notwithstanding the foregoing, nothing in these Terms shall be deemed to exclude or restrict any liability of the Employment Business to the Client for personal injury or death.

10.7 The Employment Business shall not be liable for failure to perform its obligations under these Terms if such failure arises from any cause beyond its reasonable control.

10.8 The Client shall indemnify the Employment Business and keep it indemnified on a full indemnity basis, against any costs (including legal fees, debt recovery and other legal costs, including in claims allocated to the Small Claims Track), claims or liabilities incurred directly or indirectly by the Employment Business arising out of or in connection with these Terms including (without limitation) as a result of,

 10.8.1 any breach of these Terms by the Client or by its employees or agents, in particular a failure to pay any Introduction Fee hereunder; and/or

 10.8.2 any breach by the Client or End User, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity, immigration legislation and the Regulations); and/or

 10.8.3 any unauthorised disclosure of a Contractor’s details by the Client or End User, or any of its employees or agents; and/or

 10.8.4 any tax and National Insurance contributions payable in respect of off-payroll (IR35) liabilities assessed against the Employment Business for any Assignment with the Client.

11.Termination

11.1 These Terms may be terminated by either party by giving to the other immediate notice in the event that either the Employment Business or Client goes into liquidation, becomes bankrupt or enters into an arrangement with creditors or has a receiver or administrator appointed or where the Employment Business has reasonable grounds to believe the Client will not pay the Employment Business’s invoice within the above payment terms.

11.2 Termination shall be without prejudice to any Introductions or supplies made by the Employment Business prior to the date thereof and its right to a Transfer Fee if the Client or End User subsequently Engages a Contractor after the date of termination within the Relevant Period. 

12. UK GDPR compliance

12.1 The Employment Business’s Introduction of a Contractor and/or supply of a Contractor and Contractor Staff may involve the transfer of data that is subject to protection under the General Data Protection Regulation (“UK GDPR”) or any replacement legislation following BREXIT;

12.2 The Employment Business shall act as data controller and the Client shall act as a data processor for the purposes of UK GDPR in respect of any Introductions and Assignments and shall implement appropriate technical and organisational measures in such a manner that the data processing will meet the requirements of the UK GDPR and ensure the protection of the rights of the data subject; 

13. Variation

No variation of these Terms shall be valid unless expressly agreed and approved in writing by the Client and an authorised officer of the Employment Business.

14. Applicable Law

These Terms shall be construed in accordance with the Law of England and Wales and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.