Property damage claim + employment agency
Discussion
Morning all.
Currently faced with a bit of a sticky situation which I'd welcome opinions on, especially from those working in a 'legal' capacity.
Brief overview of the set-up: I'm currently contracting to an agency as a ltd co doing driving work where I'm sub-contracted to haulage co on a week by week basis. Due to some last minute complications no contract was signed from the agency and the only thing I managed to get in place before I started contracting to them was a headed email confirmation from them agreeing to my rates, payment terms and interest charge on any late payments. I've been working flat out there for 5 weeks now and all monies have been paid on time upon receipt of my invoices.
4 weeks ago there was an incident where I was driving OUT of the warehouse in their truck & trailer and the top of the trailer impacted on the bottom of the open roller shutter door causing damage to the shutter. There is only one way in and out of the warehouse so it came as a surprise to me that the vehicle would apparently not fit through the doorhole that it came in through. It turns out that one has to fully dump the air out of the tractor unit suspension and trailer in order for it to fit. No-one advised me of this and there are no height markers on or near the doorhole. I should perhaps mention that the tractor and trailer were already inside the warehouse when I started my shift - I did not put them in there. Further, I have no idea of the time line involved since it being put in there and me driving it out; it's entirely possible that the roller shutter was closed and reopened but not raised all the way up.
The day after this happened I got an email from the agency with an invoice forwarded from an industrial door company for just short of £200+VAT for the roller shutter door to be straightened: [extract] "Please could you advise if you are able to make a contribution toward damage you caused at [x]. Unfortunately it would cost [x] far too much in excess to put through their insurance and also as you are a Ltd company, we can not insure you under our driver negligence, although this would not be covered as only vehicle units are supported by our policy."
I replied stating that no contribution either full or in part would be forthcoming, nor was I accepting any liability and explained why I was not negligent in how the shutter came to be damaged. I put forward my case that as the vehicle was already inside the warehouse, one would reasonably expect it come back out through the same opening without requiring modification to the standard road ride height suspension settings, plus also mentioned the lack of height warnings etc. They do have other lower trailers which fit inside just fine but this was one of the taller ones.
Fast forward to today and I get a call from the agency saying that they have an "audit" coming up and they don't have a completed driver application pack from me, so could you fill it in please and then send it back, but when you sign the contract please backdate it to the date you started driving for us.
The cynic in me has me thinking that this a stitch up and I am somewhat concerned about these sections in the contract :
Unfortunately the depot manager who started all this rolling isn't interested in how/why the damage happened and just wants it paying by either myself or the agency. Other than this 1 incident the company have reported that they are very happy with my work. I suspect the company are trying to force the agency's hand to pay it and the agency have/will paid/pay it because they're frightened to death of losing the business.
Thoughts on ways through this please?
Currently faced with a bit of a sticky situation which I'd welcome opinions on, especially from those working in a 'legal' capacity.
Brief overview of the set-up: I'm currently contracting to an agency as a ltd co doing driving work where I'm sub-contracted to haulage co on a week by week basis. Due to some last minute complications no contract was signed from the agency and the only thing I managed to get in place before I started contracting to them was a headed email confirmation from them agreeing to my rates, payment terms and interest charge on any late payments. I've been working flat out there for 5 weeks now and all monies have been paid on time upon receipt of my invoices.
4 weeks ago there was an incident where I was driving OUT of the warehouse in their truck & trailer and the top of the trailer impacted on the bottom of the open roller shutter door causing damage to the shutter. There is only one way in and out of the warehouse so it came as a surprise to me that the vehicle would apparently not fit through the doorhole that it came in through. It turns out that one has to fully dump the air out of the tractor unit suspension and trailer in order for it to fit. No-one advised me of this and there are no height markers on or near the doorhole. I should perhaps mention that the tractor and trailer were already inside the warehouse when I started my shift - I did not put them in there. Further, I have no idea of the time line involved since it being put in there and me driving it out; it's entirely possible that the roller shutter was closed and reopened but not raised all the way up.
The day after this happened I got an email from the agency with an invoice forwarded from an industrial door company for just short of £200+VAT for the roller shutter door to be straightened: [extract] "Please could you advise if you are able to make a contribution toward damage you caused at [x]. Unfortunately it would cost [x] far too much in excess to put through their insurance and also as you are a Ltd company, we can not insure you under our driver negligence, although this would not be covered as only vehicle units are supported by our policy."
I replied stating that no contribution either full or in part would be forthcoming, nor was I accepting any liability and explained why I was not negligent in how the shutter came to be damaged. I put forward my case that as the vehicle was already inside the warehouse, one would reasonably expect it come back out through the same opening without requiring modification to the standard road ride height suspension settings, plus also mentioned the lack of height warnings etc. They do have other lower trailers which fit inside just fine but this was one of the taller ones.
Fast forward to today and I get a call from the agency saying that they have an "audit" coming up and they don't have a completed driver application pack from me, so could you fill it in please and then send it back, but when you sign the contract please backdate it to the date you started driving for us.
The cynic in me has me thinking that this a stitch up and I am somewhat concerned about these sections in the contract :
Contract said:
3. RELATIONSHIP BETWEEN THE EMPLOYMENT BUSINESS AND THE INTERMEDIARY AND BETWEEN THE HIRER AND THE INTERMEDIARY
3.3. Nothing in this Agreement shall render any Agency Worker an employee or worker of either the Employment Business or the Hirer. The Intermediary shall ensure that the Agency Worker does not hold him/herself out as an employee or worker of either the Employment Business or the Hirer. In the event that any person should seek to establish any liability or obligation upon the Employment Business on the grounds that the Agency Worker is an employee/employees or worker/workers of the Employment Business or the Hirer, the Intermediary shall upon demand indemnify the Employment Business and keep it indemnified in respect of any such liability or obligation and any related Losses which the Employment Business or Hirer shall incur.
5. INTERMEDIARY’S OBLIGATIONS
5.5. The Intermediary acknowledges that any breach of its 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 Intermediary by way of set off or deduction from any sums owed by the Employment Business to the Intermediary.
15. LIABILITY
15.1. The Intermediary shall:
15.1.1. be liable for any Losses or injury to any party resulting from the deliberate and/or negligent acts or omissions of the Intermediary or Agency Worker during an Assignment; and
15.1.2. ensure the provision of adequate Employer’s Liability Insurance, Public Liability Insurance, Professional Indemnity Insurance and any other suitable policies of insurance in respect of the Intermediary and the Agency Worker during an Assignment and shall make a copy of the policy available to the Employment Business upon request.
16. INDEMNITY
The Intermediary shall indemnify and keep indemnified the Employment Business against any Losses suffered or incurred by the Employment Business by reason of any proceedings, claims or demands by any third party (including specifically, but without limitation, HM Revenue and Customs and any successor, equivalent or related body pursuant to the IR35 Legislation, ITEPA or the NICs Legislation and/or any supporting or consequential secondary legislation relating thereto).
My immediate thought is to send it back signed and dated from today's date and let them make the next move but somehow I get the feeling that isn't going to work, nor do I think crossing out those paragraphs, signing and dating them then signing and sending back will work either. My gut feeling is that this "audit" excuse is a load of bull and they are hoping I will just sign it and backdate it then knock £200 off my next invoice whilst pointing at my freshly signed contract.3.3. Nothing in this Agreement shall render any Agency Worker an employee or worker of either the Employment Business or the Hirer. The Intermediary shall ensure that the Agency Worker does not hold him/herself out as an employee or worker of either the Employment Business or the Hirer. In the event that any person should seek to establish any liability or obligation upon the Employment Business on the grounds that the Agency Worker is an employee/employees or worker/workers of the Employment Business or the Hirer, the Intermediary shall upon demand indemnify the Employment Business and keep it indemnified in respect of any such liability or obligation and any related Losses which the Employment Business or Hirer shall incur.
5. INTERMEDIARY’S OBLIGATIONS
5.5. The Intermediary acknowledges that any breach of its 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 Intermediary by way of set off or deduction from any sums owed by the Employment Business to the Intermediary.
15. LIABILITY
15.1. The Intermediary shall:
15.1.1. be liable for any Losses or injury to any party resulting from the deliberate and/or negligent acts or omissions of the Intermediary or Agency Worker during an Assignment; and
15.1.2. ensure the provision of adequate Employer’s Liability Insurance, Public Liability Insurance, Professional Indemnity Insurance and any other suitable policies of insurance in respect of the Intermediary and the Agency Worker during an Assignment and shall make a copy of the policy available to the Employment Business upon request.
16. INDEMNITY
The Intermediary shall indemnify and keep indemnified the Employment Business against any Losses suffered or incurred by the Employment Business by reason of any proceedings, claims or demands by any third party (including specifically, but without limitation, HM Revenue and Customs and any successor, equivalent or related body pursuant to the IR35 Legislation, ITEPA or the NICs Legislation and/or any supporting or consequential secondary legislation relating thereto).
Unfortunately the depot manager who started all this rolling isn't interested in how/why the damage happened and just wants it paying by either myself or the agency. Other than this 1 incident the company have reported that they are very happy with my work. I suspect the company are trying to force the agency's hand to pay it and the agency have/will paid/pay it because they're frightened to death of losing the business.
Thoughts on ways through this please?
PurpleMoonlight said:
Ultimately, you are responsible for your actions. You were driving the vehicle when it hit the roller door.
What insurance cover do you have?
So if you'd taken your car to a garage for some work doing and left it with them. You go back later in the day to collect it and they hand you the keys and you drive it out, but the roof hits the top of the doorway and trashes your car, would you be happy when the garage says "sorry, your fault, you needed to let some air out of your tyres in order for it to fit" you'd be happy to accept blame as "you are responsible for your actions" ? I think not.What insurance cover do you have?
I have PLI but that's not the point. I don't want a claim on my record when I'm not at fault. Happy to admit fault if I f
k up, say for example if I'd been reversing the trailer in and it had hit the door as I hadn't taken sufficient measures to ensure there was adequate headroom but if it's already inside and there's only one way in and out then it's reasonable to expect that it will go back through the same opening, is it not.I'm obviously covered to drive their vehicle on their Motor Insurance policy but as stated in the reply from the agency, the amount is such that it would be eaten up by their excess so pointless from their perspective. I realise that's a whole separate discussion but it's not relevant here so let's not go off on a tangent please.
Edited by All that jazz on Tuesday 5th April 07:10
PurpleMoonlight said:
If you are covered by the vehicle owners insurance, what does their contract with the agency say about driver negligence and the insurance excess?
It's not relevant here I'm afraid. DNI cover only covers damage to the vehicle combination that the temp is driving, not 3rd party damage. There was no damage to the vehicle. Typical DNI policies are for £10k cover and usually come with a £500 excess. Also it doesn't cover ltd cos, only their employees.Well it's rather lengthy but if you insist ! I posted what I thought were the only relevant paragraphs.
Contract said:
CONTRACT 6: TERMS OF ENGAGEMENT WITH A LIMITED COMPANY CONTRACTOR WHO HAS OPTED OUT OF THE CONDUCT REGULATIONS (WITHIN IR35)
THE PARTIES
(1) ………………… Limited (registered company no. ……….) trading as …………… of …………………………. (“the Intermediary”).
(2) [x] (“the Employment Business”).
RECITALS
(A) The Intermediary carries on the business of the provision of contractor services and has agreed to provide the services (“the Intermediary Services”) as specified in the relevant Assignment Details Form.
(B) The Employment Business has requested the Intermediary and the Intermediary has agreed with the Employment Business, to provide the Intermediary Services to the Hirer on the terms and subject to the terms of this Agreement.
1. DEFINITIONS AND INTERPRETATIONS
1.1. In this Agreement the following definitions apply:
“Agency Worker” means such of the Intermediary’s employees, workers, officers or representatives supplied to provide the Intermediary Services; and
“AWR” means the Agency Workers Regulations 2010
“Assignment” means the Intermediary Services to be performed by the Agency Worker for a period of time during which the Intermediary is supplied by the Employment Business to provide the Intermediary Services to the Hirer;
“Assignment Details Form” means confirmation of the Assignment details to be given to the Intermediary upon acceptance of the Assignment;
“Calendar Week” means any period of seven days starting with the same day as the first day of the First Assignment;
“Companies Acts” means the Companies Acts 1985, 1989 and 2006;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
“Confidential Information” shall mean 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 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, provided to the Intermediary 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 this Agreement together with any reproductions of such information in any form or medium or any part(s) of such information;
“Control” means (a) the legal or beneficial ownership, directly or indirectly, of more than 50% of the issued share capital or similar right of ownership; or (b) the power to direct or cause the direction of the affairs and/or general management of the company, partnership, statutory body or other entity in question, whether through the ownership of voting capital, by contract or otherwise, and "Controls" and "Controlled" shall be construed accordingly;
“Data Protection Laws” means the Data Protection Act 1998, any applicable statutory or regulatory provisions and all European Directives and regulations in force from time to time relating to the protection and transfer of personal data;
“First Assignment” means:
(a) the relevant Assignment; or
(b) if, prior to the relevant Assignment:
i. the Agency Worker has worked in any assignment in the same role with the relevant Hirer as the role in which the Agency Worker works in the relevant Assignment; and
ii. the relevant Qualifying Period commenced in any such assignment,
that assignment (an assignment being (for the purpose of this defined term) a period of time during which the Agency Worker is supplied by one or more Temporary Work Agencies to the relevant Hirer to work temporarily for and under the supervision and direction of the relevant Hirer);
“Hirer” means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) requiring the Intermediary Services and identified in the Assignment Details Form;
“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;
“Intermediary Fees” means the fees payable to the Intermediary for the provision of the Intermediary Services as set out in the relevant Assignment Details Form;
“IR35 Legislation” means Chapter 8 of Part 2 of ITEPA;
“ITEPA” means the Income Tax (Earnings and Pensions) Act 2003;
“Losses” means all losses, liabilities, damages, costs, expenses whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands; and "Loss" shall be construed accordingly;
“NICs Legislation” means the Social Security (Categorisation of Earners) Regulations 1978;
“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 the Schedule to this Agreement;
“Relevant Terms and Conditions” means terms and conditions relating to:
(a) pay;
(b) the duration of working time;
(c) night work;
(d) rest periods;
(e) rest breaks; and
(f) annual leave
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;
“Reporting Requirements” means the requirements of the Income Tax (Pay as you Earn) (Amendment No. 2) Regulations 2015; and
“Specified Intermediary” means the party required to submit the report to HMRC in compliance with the Reporting Requirements.
“Temporary Work Agency” means as defined in [the Schedule to this Agreement; and
“Working Time Regulations” 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 feminine and vice versa.
1.3. The headings contained in this Agreement are for convenience only and do not affect their interpretation.
1.4. Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of this Agreement) and all subordinate legislation made (before or after this Agreement) under it from time to time.
2. THE AGREEMENT
2.1. This Agreement together with the attached Schedule and any applicable Assignment Details Form constitutes the entire agreement (“the Agreement”) between the Employment Business and the Intermediary for the supply of the Intermediary Services to the Hirer and shall govern all Assignments undertaken by the Intermediary. However no contract shall exist between the Employment Business and the Intermediary between Assignments. This Agreement shall prevail over any other terms put forward by the Intermediary.
2.2. For the avoidance of doubt this Agreement shall not be construed as a contract of employment between any Agency Worker supplied to provide the Intermediary Services and either the Employment Business or the Hirer and any of the liabilities of an employer arising out of the Assignment shall be the liabilities of the Intermediary.
2.3. No variation or alteration to this Agreement shall be valid unless details of such variations are agreed between the Employment Business and the Intermediary and are set out in writing.
3. RELATIONSHIP BETWEEN THE EMPLOYMENT BUSINESS AND THE INTERMEDIARY AND BETWEEN THE HIRER AND THE INTERMEDIARY
3.1. The Intermediary acknowledges that the nature of temporary work means that there may be periods when no suitable work is available and agrees that:
3.1.1. the suitability of the work to be offered shall be determined solely by the Employment Business;
3.1.2. the Employment Business shall incur no liability to the Intermediary should it fail to offer opportunities to work to the Intermediary; and
3.1.3. the Intermediary shall not be obliged to accept any Assignment offered by the Employment Business.
3.2. The Intermediary acknowledges to the Employment Business that its services are supplied to the Employment Business as an independent contractor and that accordingly the responsibility of complying with all statutory and legal requirements relating to the Agency Worker (including but not limited to the payment of taxation and compliance with the immigration laws applicable to the jurisdiction in which the Intermediary Services are provided) shall fall upon and be discharged wholly and exclusively by the Intermediary.
3.3. Nothing in this Agreement shall render any Agency Worker an employee or worker of either the Employment Business or the Hirer. The Intermediary shall ensure that the Agency Worker does not hold him/herself out as an employee or worker of either the Employment Business or the Hirer. In the event that any person should seek to establish any liability or obligation upon the Employment Business on the grounds that the Agency Worker is an employee/employees or worker/workers of the Employment Business or the Hirer, the Intermediary shall upon demand indemnify the Employment Business and keep it indemnified in respect of any such liability or obligation and any related Losses which the Employment Business or Hirer shall incur.
3.4. If the Agency Worker has completed the Qualifying Period on the start date of the relevant Assignment or following completion of the Qualifying Period during the relevant Assignment, and if the Agency Worker is entitled to any terms and conditions relating to the duration of working time, night work, rest periods and/or rest breaks under the AWR which are different and preferential to rights and entitlements relating to the same under the Working Time Regulations, any such terms and conditions will be as set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form (as appropriate) and the Intermediary will give the Agency Worker any such entitlements.
3.5. Save to the extent any such Loss results from any act or omission of the Employment Business or the Hirer, the Intermediary shall indemnify and keep indemnified the Employment Business (or, as the case may be, the Hirer) against any Losses the Employment Business (or the Hirer) may suffer or incur as a result of any claim made by or on behalf of the Agency Worker under the AWR.
3.6. As a Temporary Work Agency, the Intermediary will comply with the AWR in all relevant respects.
3.7. As a Temporary Work Agency, the Intermediary will notify the Employment Business as soon as possible prior to the commencement of the first Assignment under this Agreement if the Agency Worker has a permanent contract of employment with the Intermediary that satisfies the requirements of Regulation 10 of the AWR and immediately if and when any such contract is terminated.
4. WARRANTIES PROVIDED BY THE INTERMEDIARY
4.1. The Intermediary warrants to the Employment Business that:
4.1.1. by entering into and performing its obligations under this Agreement it will not thereby be in breach of any obligation which it owes to any third party;
4.1.2. the Agency Worker has the necessary skills and qualifications to perform the Intermediary Services;
4.1.3. the Intermediary and the Agency Worker providing the Intermediary Services have agreed to opt out of the Conduct Regulations and have signed an agreement to that effect and as such understand that none of the Conduct Regulations apply to this Assignment. Further the Intermediary warrants that it will only supply staff to perform the Intermediary Services who have opted out of the Conduct Regulations;
4.1.4. the Intermediary is not a “managed service company” as defined in section 61B of ITEPA and is not in breach of the IR35 Legislation;
4.1.5. the Intermediary is not incorporated or registered in a jurisdiction outside of the UK;
4.1.6. the Intermediary will comply at all times with ITEPA and the NICs Legislation including in particular in relation to the deduction of the appropriate PAYE and national insurance deductions and payment of the appropriate employers’ national insurance contributions; and
4.1.7. all information the Intermediary provides to the Employment Business in order to comply with the Reporting Requirements and clauses 5.1.11 to 5.1.14 is complete and accurate.
4.2. The Intermediary shall procure that the Agency Worker, any sub-contractor or assignee performing the Intermediary Services warrant that they are not and do not operate as ‘managed service companies’ as defined in section 61B of the Income Tax (Earnings and Pensions) Act 2003 which are compliant in all respects with the IR35 Legislation.
4.3. The Intermediary warrants to the Employment Business that the Agency Worker has consented in writing to the Employment Business, any other intermediary involved in supplying the services of the Intermediary and the Agency Worker to the Hirer (now or in the future) and the Hirer:
4.3.1. processing the Agency Worker’s personal data for purposes connected with the provision of the Intermediary Services and pursuant to this Agreement; and
4.3.2. exporting and/or processing the Agency Worker’s personal data in jurisdictions outside the European Economic Area for purposes connected with the performance of this Agreement.
5. INTERMEDIARY’S OBLIGATIONS
5.1. The Intermediary agrees on its own part and on behalf of the Agency Worker as follows:
5.1.1. to co-operate with the Hirer’s reasonable instructions and accept the direction of any responsible person in the Hirer’s organisation within the scope of the Assignment;
5.1.2. to observe any relevant rules and regulations of the Hirer’s establishment or the premises where the Intermediary Services are being provided which have been brought to the attention of the Intermediary or which the Intermediary might reasonably be expected to ascertain; including but not limited to those relating to health and safety to the extent that they are reasonably applicable to the Intermediary and the Agency Worker;
5.1.3. to take all reasonable steps to safeguard its own safety, the safety of the Agency Worker and the safety of any other person who may be affected by the actions of the Agency Worker whilst on the Assignment;
5.1.4. to comply with the Data Protection Laws in respect of any personal data which the Intermediary is granted access to for the purpose of or by reason of the performance of the Intermediary Services;
5.1.5. not at any time divulge to any person, nor use for its own or any other person’s benefit, any Confidential Information relating to the Hirer’s or the Employment Business’ employees, business affairs, transactions or finances;
5.1.6. not to engage in any conduct detrimental to the interests of the Employment Business and/or the Hirer which includes any conduct which could bring the Employment Business and/or the Hirer into disrepute and/or which results in the loss of custom or business by either the Employment Business or the Hirer;
5.1.7. not commit any act or omission constituting unlawful discrimination against or harassment of any member of the Employment Business’ or the Hirer’s staff;
5.1.8. not to sub-contract or assign to any third party any of the Intermediary Services which it is required to perform under any Assignment;
5.1.9. to furnish the Hirer and/or the Employment Business with any progress reports as may be requested from time to time;
5.1.10. to notify the Employment Business forthwith in writing if it should become insolvent, or if any of the arrangements set out in clauses 9.2.5 to 9.2.7 apply;
5.1.11. to confirm in writing whether or not the Agency Worker has a material interest (as defined in section 51 ITEPA) in the Intermediary. A “material interest” includes holding more than 5% of the shares of the Intermediary;
5.1.12. to comply with all relevant legal obligations, including but not limited to ITEPA, the NICs Legislation, VAT legislation and the Companies Acts;
5.1.13. to provide the Employment Business with all such information it may require to comply with (a) the Reporting Requirements where it is the Specified Intermediary or (b) any contractual obligations the Employment Business has to provide information to the Specified Intermediary (where it is a party other than the Employment Business) to enable the Specified Intermediary to comply with its Reporting Requirements;
5.1.14. to update the Employment Business promptly where any of the information required under clauses 5.1.11 to 5.1.13 inclusive changes;
5.1.15. to notify the Employment Business in writing immediately if it becomes subject to a HMRC investigation or compliance activity including but not limited to any of ITEPA, the NICs legislation or VAT legislation;
5.1.16. to provide the Employment Business with a copy of the terms under which the Intermediary has engaged the Agency Worker.
5.2. As soon as possible prior to the commencement of each Assignment and during each Assignment (as appropriate) and at any time at the Employment Business’ request, the Intermediary undertakes to:
5.2.1. inform the Employment Business of any Calendar Weeks between 1 October 2011 and prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment in which the Agency Worker has worked in the same or a similar role with the relevant Hirer via any third party and which the Intermediary and/or the Agency Worker believes count or may count toward the Qualifying Period; and
5.2.2. provide the Employment Business with all the details of such work, including (without limitation) details of where, when and the period(s) during which such work was undertaken and any other details requested by the Employment Business; and
5.2.3. inform the Employment Business if, since 1 October 2011, the Agency Worker has prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment:
5.2.3.1. completed two or more assignments with the Hirer;
5.2.3.2. completed at least one assignment with the Hirer and one or more earlier assignments with any member of the Hirer’s Group; and/or
5.2.3.3. worked in more than two roles during an assignment with the Hirer and on at least two occasions worked in a role that was not the same role as the previous role.
5.3. If the Agency Worker is unable for any reason to provide the Intermediary Services during the course of an Assignment, the Intermediary should inform the Employment Business as soon as possible, but in any event no later than 1 hour after the commencement of the Assignment or shift. In the event that it is not possible to inform the Employment Business within these timescales, the Intermediary should alternatively inform the Hirer and then the Employment Business as soon as possible.
5.4. If, either before or during the course of an Assignment, the Intermediary becomes aware of any reason why it or the Agency Worker may not be suitable for an Assignment, the Intermediary shall notify the Employment Business without delay.
5.5. The Intermediary acknowledges that any breach of its 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 Intermediary by way of set off or deduction from any sums owed by the Employment Business to the Intermediary.
6. OBLIGATIONS OF THE EMPLOYMENT BUSINESS
6.1. Throughout the term of this Agreement the Employment Business will:
6.1.1. pay the Intermediary the agreed Intermediary Fees in respect of the provision of the Intermediary Services in accordance with clause 8, subject to any right of set off or deduction in clause 5.5;
6.1.2. furnish the Intermediary with sufficient information about the Assignment in the relevant Assignment Details Form in order for the Intermediary to arrange for the Intermediary Services to be carried out; and
6.1.3. advise the Intermediary of any health and safety information or advice which it receives from the Hirer which may affect the Agency Worker during the Assignment.
7. TIMESHEETS AND INVOICING
7.1. At the end of each week of an Assignment (or at the end of the Assignment where an Assignment is for a period of less than 1 week or is completed before the end of a week) the Intermediary shall deliver to the Employment Business the Employment Business’ timesheet duly completed to indicate the number of hours worked by the Intermediary during the preceding week.
7.2. The timesheet must be signed by an authorised representative of the Hirer. The timesheet must be accompanied by an invoice from the Intermediary for the Intermediary Fees due from the Employment Business to the Intermediary for the hours worked in that week. Such invoice should bear the Intermediary’s name, the name of the Agency Worker who provided the Intermediary Services, the Intermediary’s company registration number and VAT number, and should state any VAT due on the invoiced sum.
7.3. In order to ensure prompt payment, such timesheets should be received by the Employment Business by no later than 0900am on Monday following the week to which they relate.
8. FEES
8.1. The Employment Business will pay the Intermediary the Intermediary Fees within 7 days of receipt of the Intermediary’s timesheet and invoice subject to:
8.1.1. the satisfactory performance of the Intermediary Services;
8.1.2. the Intermediary’s compliance with this Agreement;
8.1.3. the Employment Business’ receipt of the Intermediary’s invoice in accordance with clause 7 above; and
8.2. Subject to clause 8.9, if the Agency Worker:
8.2.1. has completed the Qualifying Period on the start date of the relevant Assignment, the Employment Business reserves the right to vary the Intermediary Fees if there is any variation in (a) (pay) of the Relevant Terms and Conditions; or
8.2.2. completes the Qualifying Period during the relevant Assignment, in order to comply with the equal treatment provisions of the AWR in relation to the Agency Worker in respect of pay, the Employment Business reserves the right to vary the Intermediary Fees from the day after the date on which the Agency Worker completes the Qualifying Period and thereafter if there is any variation in (a) (pay) of the Relevant Terms and Conditions.
Any such variation will be as set out in a variation to the relevant Assignment Details Form and the Intermediary shall ensure that, if at any time the Employment Business varies the Intermediary Fees in accordance with this clause 8.2, the Intermediary will, at the same time, make the same variations to the corresponding payments the Intermediary makes to the Agency Worker.
8.3. Under the AWR, on completion of the Qualifying Period the Agency Worker may be entitled to paid annual leave (save where the Intermediary is a Temporary Work Agency and it is agreed in the relevant Assignment Details Form that the Agency Worker has a permanent contract of employment with the Intermediary that satisfies the requirements of Regulation 10 of the AWR) and/or unpaid annual leave in addition to the Agency Worker’s entitlement to paid annual leave under the
Working Time Regulations provided by the Intermediary. If this is the case, any such entitlement(s), the date from which any such entitlement(s) will commence and how any payment for such entitlement accrues in respect of the relevant Assignment will be as set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form and the Intermediary will pass this information on to the Agency Worker and, if the Intermediary receives any such payment(s) for leave from the Employment Business, the Intermediary will make the same payment(s) to the Agency Worker.
8.4. Subject to clause 8.9, if the Agency Worker has completed the Qualifying Period on the start date of the relevant Assignment or following completion of the Qualifying Period during the relevant Assignment, the Agency Worker may be entitled to receive a bonus. The Intermediary will, and will procure that the Agency Worker will, comply with any requirements of the Employment Business and/or the Hirer relating to the assessment of the Agency Worker’s performance for the purpose of determining whether or not the Agency Worker is entitled to a bonus and the amount of any such bonus. If, subject to satisfying the relevant criteria, the Agency Worker is entitled to receive a bonus, the Employment Business will pay the bonus to the Intermediary and the Intermediary will pay the bonus to the Agency Worker.
8.5. The Intermediary shall be responsible for the deduction of any PAYE Income Tax and National Insurance Contributions and any other taxes and deductions payable in respect of the Agency Worker for any Assignment.
8.6. All payments due from the Employment Business will be made to the Intermediary and not to any third party or Agency Worker, any sub-contractor or assignee.
8.7. The Employment Business shall not be obliged to pay the Intermediary for any periods during which the Intermediary Services are not provided, whether this is due to the Intermediary being unable to provide the Intermediary Services or where the Hirer does not require the Intermediary Services or otherwise in respect of holidays (save as where may be the case in accordance with clause 8.3), illness or absence of the Agency Worker.
8.8. The Intermediary shall bear the cost of any training which the Agency Worker may require in order to perform the Intermediary Services.
8.9. Clauses 8.2 and 8.4 will not apply where the Agency Worker has a permanent contract of employment with the Intermediary that satisfies the requirements of Regulation 10 of the AWR.
9. TERM AND TERMINATION
9.1. An Assignment may be terminated by either the Employment Business or the Intermediary giving the other party in writing the period of notice specified in the relevant Assignment Details Form.
9.2. Notwithstanding clauses 9.1 and 9.3 of this Agreement, the Employment Business may without notice and without liability instruct the Intermediary to cease work on an Assignment at any time, where:
9.2.1. the Intermediary has acted in breach of the rules and regulations applicable to third parties providing services to the Hirer or to the Hirer’s own staff; or
9.2.2. the Intermediary has committed any serious or persistent breach of any of its obligations under this Agreement; or
9.2.3. the Hirer reasonably believes that the Intermediary has not observed any condition of confidentiality from time to time;
9.2.4. the Hirer is dissatisfied with the Intermediary’s provision of the Intermediary Services and has terminated the Assignment; or
9.2.5. either the Hirer or the Intermediary is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; or
9.2.6. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the Hirer or the Intermediary; or
9.2.7. an order is made for the winding up of the Hirer or the Intermediary, or where the Hirer or the Intermediary passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation or amalgamation where the resulting entity will assume all the obligations of the other party under this Agreement); or
9.2.8. the Intermediary or the Agency Worker is suspected of any fraud, dishonesty or serious misconduct; or
9.2.9. the Intermediary is unable to perform the Intermediary Services for 5 days or more; or
9.2.10. the Employment Business suspects or believes that the Intermediary has not complied with the requirements of ITEPA or the NICs Legislation.
9.3. The Intermediary 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 Hirer. In the event that the contract between the Employment Business and the Hirer is terminated for any reason the Assignment shall cease with immediate effect without liability to the Intermediary.
9.4. Failure by the Intermediary to give notice of termination as required in the relevant Assignment Details Form shall constitute a breach of contract and shall entitle the Employment Business to claim damages from the Intermediary for any resulting Losses suffered by the Employment Business.
10. INTELLECTUAL PROPERTY RIGHTS
The Intermediary acknowledges that all copyright, trademarks, patents and other intellectual property rights deriving from the Intermediary Services shall belong to the Hirer. Accordingly the Intermediary shall (and shall procure that any relevant Agency 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.
11. CONFIDENTIALITY
11.1. In order to protect the confidentiality and trade secrets of any Hirer and the Employment Business and without prejudice to every other duty to keep secret all information given to it or gained in confidence the Intermediary agrees on its own part and on behalf of the Agency Worker as follows:
11.1.1. not at any time whether during or after an Assignment (unless expressly so authorised by the Hirer 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 Hirer or the Employment Business with the exception of information already in the public domain;
11.1.2. to deliver up to the Hirer or the Employment Business (as directed) at the end of each Assignment all documents and other materials belonging to the Hirer (and all copies) which are in its possession including documents and other materials created by it or the Agency Worker during the course of the Assignment; and
11.1.3. not at any time to make any copy, abstract, summary or précis of the whole or any part of any document or other material belonging to the Hirer 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 Hirer or the Employment Business as appropriate.
12. COMPUTER EQUIPMENT WARRANTY
The Intermediary shall ensure that any computer equipment and associated software which it provides to the Agency Worker for the purpose of providing the Intermediary Services contains anti-virus protection with the latest released upgrade from time to time.
13. RESTRICTION
The Intermediary shall not (and shall procure that the Agency Worker shall not) during the Assignment or for a period of 6 months following the termination of the Assignment supply the services of the Agency Worker directly, or through any other person, firm or Employment Business, to any Hirer for which s/he has carried out Assignments at any time during the previous 6 months.
14. CONTRACT MONITORING AND AUDITS
14.1. The Employment Business reserves the right to audit the Intermediary on an ad hoc basis to ensure compliance with this Agreement and all statutory requirements in relation to all Agency Workers supplied to provide the Intermediary Services
including in particular but not limited to ITEPA and the NICs Legislation. The Employment Business will give the Intermediary 14 days’ notice of such audit.
14.2. To assist the Employment Business in its audit the Intermediary will:
14.2.1. maintain such records as are necessary to comply with this Agreement and all statutory requirements in relation to all Agency Workers supplied to provide the Intermediary Services, and will provide copies of the same to the Employment Business on request;
14.2.2. provide the Employment Business with access to its premises and original records relating to all Agency Workers supplied to provide the Intermediary Services.
15. LIABILITY
15.1. The Intermediary shall:
15.1.1. be liable for any Losses or injury to any party resulting from the deliberate and/or negligent acts or omissions of the Intermediary or Agency Worker during an Assignment; and
15.1.2. ensure the provision of adequate Employer’s Liability Insurance, Public Liability Insurance, Professional Indemnity Insurance and any other suitable policies of insurance in respect of the Intermediary and the Agency Worker during an Assignment and shall make a copy of the policy available to the Employment Business upon request.
16. INDEMNITY
The Intermediary shall indemnify and keep indemnified the Employment Business against any Losses suffered or incurred by the Employment Business by reason of any proceedings, claims or demands by any third party (including specifically, but without limitation, HM Revenue and Customs and any successor, equivalent or related body pursuant to the IR35 Legislation, ITEPA or the NICs Legislation and/or any supporting or consequential secondary legislation relating thereto).
17. SEVERABILITY
If any of the provisions of this Agreement 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.
18. 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.
19. THIRD PARTY RIGHTS
19.1. Save as set out in clause 19.2, none of the provisions of this Agreement is intended to be for the benefit of or enforceable by third parties (other than permitted assignees who shall be entitled to enforce the provisions of this Agreement as if original parties to it) and the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.
19.2. The Hirer shall be entitled to rely on and enforce the indemnities in clause 3.5 given by the Intermediary in favour of the Hirer, notwithstanding that the Hirer is not a party to this Agreement.
20. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law of England & Wales and is subject to the exclusive jurisdiction of the Courts of England & Wales.
Signed for and on behalf of the Employment Business
[print name here]
Signed for and on behalf of ……………………………………………. Ltd. (the Intermediary)
[print name here]
I am authorised to sign these Terms for and on behalf of the Intermediary.
Date
THE PARTIES
(1) ………………… Limited (registered company no. ……….) trading as …………… of …………………………. (“the Intermediary”).
(2) [x] (“the Employment Business”).
RECITALS
(A) The Intermediary carries on the business of the provision of contractor services and has agreed to provide the services (“the Intermediary Services”) as specified in the relevant Assignment Details Form.
(B) The Employment Business has requested the Intermediary and the Intermediary has agreed with the Employment Business, to provide the Intermediary Services to the Hirer on the terms and subject to the terms of this Agreement.
1. DEFINITIONS AND INTERPRETATIONS
1.1. In this Agreement the following definitions apply:
“Agency Worker” means such of the Intermediary’s employees, workers, officers or representatives supplied to provide the Intermediary Services; and
“AWR” means the Agency Workers Regulations 2010
“Assignment” means the Intermediary Services to be performed by the Agency Worker for a period of time during which the Intermediary is supplied by the Employment Business to provide the Intermediary Services to the Hirer;
“Assignment Details Form” means confirmation of the Assignment details to be given to the Intermediary upon acceptance of the Assignment;
“Calendar Week” means any period of seven days starting with the same day as the first day of the First Assignment;
“Companies Acts” means the Companies Acts 1985, 1989 and 2006;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
“Confidential Information” shall mean 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 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, provided to the Intermediary 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 this Agreement together with any reproductions of such information in any form or medium or any part(s) of such information;
“Control” means (a) the legal or beneficial ownership, directly or indirectly, of more than 50% of the issued share capital or similar right of ownership; or (b) the power to direct or cause the direction of the affairs and/or general management of the company, partnership, statutory body or other entity in question, whether through the ownership of voting capital, by contract or otherwise, and "Controls" and "Controlled" shall be construed accordingly;
“Data Protection Laws” means the Data Protection Act 1998, any applicable statutory or regulatory provisions and all European Directives and regulations in force from time to time relating to the protection and transfer of personal data;
“First Assignment” means:
(a) the relevant Assignment; or
(b) if, prior to the relevant Assignment:
i. the Agency Worker has worked in any assignment in the same role with the relevant Hirer as the role in which the Agency Worker works in the relevant Assignment; and
ii. the relevant Qualifying Period commenced in any such assignment,
that assignment (an assignment being (for the purpose of this defined term) a period of time during which the Agency Worker is supplied by one or more Temporary Work Agencies to the relevant Hirer to work temporarily for and under the supervision and direction of the relevant Hirer);
“Hirer” means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) requiring the Intermediary Services and identified in the Assignment Details Form;
“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;
“Intermediary Fees” means the fees payable to the Intermediary for the provision of the Intermediary Services as set out in the relevant Assignment Details Form;
“IR35 Legislation” means Chapter 8 of Part 2 of ITEPA;
“ITEPA” means the Income Tax (Earnings and Pensions) Act 2003;
“Losses” means all losses, liabilities, damages, costs, expenses whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands; and "Loss" shall be construed accordingly;
“NICs Legislation” means the Social Security (Categorisation of Earners) Regulations 1978;
“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 the Schedule to this Agreement;
“Relevant Terms and Conditions” means terms and conditions relating to:
(a) pay;
(b) the duration of working time;
(c) night work;
(d) rest periods;
(e) rest breaks; and
(f) annual leave
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;
“Reporting Requirements” means the requirements of the Income Tax (Pay as you Earn) (Amendment No. 2) Regulations 2015; and
“Specified Intermediary” means the party required to submit the report to HMRC in compliance with the Reporting Requirements.
“Temporary Work Agency” means as defined in [the Schedule to this Agreement; and
“Working Time Regulations” 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 feminine and vice versa.
1.3. The headings contained in this Agreement are for convenience only and do not affect their interpretation.
1.4. Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of this Agreement) and all subordinate legislation made (before or after this Agreement) under it from time to time.
2. THE AGREEMENT
2.1. This Agreement together with the attached Schedule and any applicable Assignment Details Form constitutes the entire agreement (“the Agreement”) between the Employment Business and the Intermediary for the supply of the Intermediary Services to the Hirer and shall govern all Assignments undertaken by the Intermediary. However no contract shall exist between the Employment Business and the Intermediary between Assignments. This Agreement shall prevail over any other terms put forward by the Intermediary.
2.2. For the avoidance of doubt this Agreement shall not be construed as a contract of employment between any Agency Worker supplied to provide the Intermediary Services and either the Employment Business or the Hirer and any of the liabilities of an employer arising out of the Assignment shall be the liabilities of the Intermediary.
2.3. No variation or alteration to this Agreement shall be valid unless details of such variations are agreed between the Employment Business and the Intermediary and are set out in writing.
3. RELATIONSHIP BETWEEN THE EMPLOYMENT BUSINESS AND THE INTERMEDIARY AND BETWEEN THE HIRER AND THE INTERMEDIARY
3.1. The Intermediary acknowledges that the nature of temporary work means that there may be periods when no suitable work is available and agrees that:
3.1.1. the suitability of the work to be offered shall be determined solely by the Employment Business;
3.1.2. the Employment Business shall incur no liability to the Intermediary should it fail to offer opportunities to work to the Intermediary; and
3.1.3. the Intermediary shall not be obliged to accept any Assignment offered by the Employment Business.
3.2. The Intermediary acknowledges to the Employment Business that its services are supplied to the Employment Business as an independent contractor and that accordingly the responsibility of complying with all statutory and legal requirements relating to the Agency Worker (including but not limited to the payment of taxation and compliance with the immigration laws applicable to the jurisdiction in which the Intermediary Services are provided) shall fall upon and be discharged wholly and exclusively by the Intermediary.
3.3. Nothing in this Agreement shall render any Agency Worker an employee or worker of either the Employment Business or the Hirer. The Intermediary shall ensure that the Agency Worker does not hold him/herself out as an employee or worker of either the Employment Business or the Hirer. In the event that any person should seek to establish any liability or obligation upon the Employment Business on the grounds that the Agency Worker is an employee/employees or worker/workers of the Employment Business or the Hirer, the Intermediary shall upon demand indemnify the Employment Business and keep it indemnified in respect of any such liability or obligation and any related Losses which the Employment Business or Hirer shall incur.
3.4. If the Agency Worker has completed the Qualifying Period on the start date of the relevant Assignment or following completion of the Qualifying Period during the relevant Assignment, and if the Agency Worker is entitled to any terms and conditions relating to the duration of working time, night work, rest periods and/or rest breaks under the AWR which are different and preferential to rights and entitlements relating to the same under the Working Time Regulations, any such terms and conditions will be as set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form (as appropriate) and the Intermediary will give the Agency Worker any such entitlements.
3.5. Save to the extent any such Loss results from any act or omission of the Employment Business or the Hirer, the Intermediary shall indemnify and keep indemnified the Employment Business (or, as the case may be, the Hirer) against any Losses the Employment Business (or the Hirer) may suffer or incur as a result of any claim made by or on behalf of the Agency Worker under the AWR.
3.6. As a Temporary Work Agency, the Intermediary will comply with the AWR in all relevant respects.
3.7. As a Temporary Work Agency, the Intermediary will notify the Employment Business as soon as possible prior to the commencement of the first Assignment under this Agreement if the Agency Worker has a permanent contract of employment with the Intermediary that satisfies the requirements of Regulation 10 of the AWR and immediately if and when any such contract is terminated.
4. WARRANTIES PROVIDED BY THE INTERMEDIARY
4.1. The Intermediary warrants to the Employment Business that:
4.1.1. by entering into and performing its obligations under this Agreement it will not thereby be in breach of any obligation which it owes to any third party;
4.1.2. the Agency Worker has the necessary skills and qualifications to perform the Intermediary Services;
4.1.3. the Intermediary and the Agency Worker providing the Intermediary Services have agreed to opt out of the Conduct Regulations and have signed an agreement to that effect and as such understand that none of the Conduct Regulations apply to this Assignment. Further the Intermediary warrants that it will only supply staff to perform the Intermediary Services who have opted out of the Conduct Regulations;
4.1.4. the Intermediary is not a “managed service company” as defined in section 61B of ITEPA and is not in breach of the IR35 Legislation;
4.1.5. the Intermediary is not incorporated or registered in a jurisdiction outside of the UK;
4.1.6. the Intermediary will comply at all times with ITEPA and the NICs Legislation including in particular in relation to the deduction of the appropriate PAYE and national insurance deductions and payment of the appropriate employers’ national insurance contributions; and
4.1.7. all information the Intermediary provides to the Employment Business in order to comply with the Reporting Requirements and clauses 5.1.11 to 5.1.14 is complete and accurate.
4.2. The Intermediary shall procure that the Agency Worker, any sub-contractor or assignee performing the Intermediary Services warrant that they are not and do not operate as ‘managed service companies’ as defined in section 61B of the Income Tax (Earnings and Pensions) Act 2003 which are compliant in all respects with the IR35 Legislation.
4.3. The Intermediary warrants to the Employment Business that the Agency Worker has consented in writing to the Employment Business, any other intermediary involved in supplying the services of the Intermediary and the Agency Worker to the Hirer (now or in the future) and the Hirer:
4.3.1. processing the Agency Worker’s personal data for purposes connected with the provision of the Intermediary Services and pursuant to this Agreement; and
4.3.2. exporting and/or processing the Agency Worker’s personal data in jurisdictions outside the European Economic Area for purposes connected with the performance of this Agreement.
5. INTERMEDIARY’S OBLIGATIONS
5.1. The Intermediary agrees on its own part and on behalf of the Agency Worker as follows:
5.1.1. to co-operate with the Hirer’s reasonable instructions and accept the direction of any responsible person in the Hirer’s organisation within the scope of the Assignment;
5.1.2. to observe any relevant rules and regulations of the Hirer’s establishment or the premises where the Intermediary Services are being provided which have been brought to the attention of the Intermediary or which the Intermediary might reasonably be expected to ascertain; including but not limited to those relating to health and safety to the extent that they are reasonably applicable to the Intermediary and the Agency Worker;
5.1.3. to take all reasonable steps to safeguard its own safety, the safety of the Agency Worker and the safety of any other person who may be affected by the actions of the Agency Worker whilst on the Assignment;
5.1.4. to comply with the Data Protection Laws in respect of any personal data which the Intermediary is granted access to for the purpose of or by reason of the performance of the Intermediary Services;
5.1.5. not at any time divulge to any person, nor use for its own or any other person’s benefit, any Confidential Information relating to the Hirer’s or the Employment Business’ employees, business affairs, transactions or finances;
5.1.6. not to engage in any conduct detrimental to the interests of the Employment Business and/or the Hirer which includes any conduct which could bring the Employment Business and/or the Hirer into disrepute and/or which results in the loss of custom or business by either the Employment Business or the Hirer;
5.1.7. not commit any act or omission constituting unlawful discrimination against or harassment of any member of the Employment Business’ or the Hirer’s staff;
5.1.8. not to sub-contract or assign to any third party any of the Intermediary Services which it is required to perform under any Assignment;
5.1.9. to furnish the Hirer and/or the Employment Business with any progress reports as may be requested from time to time;
5.1.10. to notify the Employment Business forthwith in writing if it should become insolvent, or if any of the arrangements set out in clauses 9.2.5 to 9.2.7 apply;
5.1.11. to confirm in writing whether or not the Agency Worker has a material interest (as defined in section 51 ITEPA) in the Intermediary. A “material interest” includes holding more than 5% of the shares of the Intermediary;
5.1.12. to comply with all relevant legal obligations, including but not limited to ITEPA, the NICs Legislation, VAT legislation and the Companies Acts;
5.1.13. to provide the Employment Business with all such information it may require to comply with (a) the Reporting Requirements where it is the Specified Intermediary or (b) any contractual obligations the Employment Business has to provide information to the Specified Intermediary (where it is a party other than the Employment Business) to enable the Specified Intermediary to comply with its Reporting Requirements;
5.1.14. to update the Employment Business promptly where any of the information required under clauses 5.1.11 to 5.1.13 inclusive changes;
5.1.15. to notify the Employment Business in writing immediately if it becomes subject to a HMRC investigation or compliance activity including but not limited to any of ITEPA, the NICs legislation or VAT legislation;
5.1.16. to provide the Employment Business with a copy of the terms under which the Intermediary has engaged the Agency Worker.
5.2. As soon as possible prior to the commencement of each Assignment and during each Assignment (as appropriate) and at any time at the Employment Business’ request, the Intermediary undertakes to:
5.2.1. inform the Employment Business of any Calendar Weeks between 1 October 2011 and prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment in which the Agency Worker has worked in the same or a similar role with the relevant Hirer via any third party and which the Intermediary and/or the Agency Worker believes count or may count toward the Qualifying Period; and
5.2.2. provide the Employment Business with all the details of such work, including (without limitation) details of where, when and the period(s) during which such work was undertaken and any other details requested by the Employment Business; and
5.2.3. inform the Employment Business if, since 1 October 2011, the Agency Worker has prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment:
5.2.3.1. completed two or more assignments with the Hirer;
5.2.3.2. completed at least one assignment with the Hirer and one or more earlier assignments with any member of the Hirer’s Group; and/or
5.2.3.3. worked in more than two roles during an assignment with the Hirer and on at least two occasions worked in a role that was not the same role as the previous role.
5.3. If the Agency Worker is unable for any reason to provide the Intermediary Services during the course of an Assignment, the Intermediary should inform the Employment Business as soon as possible, but in any event no later than 1 hour after the commencement of the Assignment or shift. In the event that it is not possible to inform the Employment Business within these timescales, the Intermediary should alternatively inform the Hirer and then the Employment Business as soon as possible.
5.4. If, either before or during the course of an Assignment, the Intermediary becomes aware of any reason why it or the Agency Worker may not be suitable for an Assignment, the Intermediary shall notify the Employment Business without delay.
5.5. The Intermediary acknowledges that any breach of its 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 Intermediary by way of set off or deduction from any sums owed by the Employment Business to the Intermediary.
6. OBLIGATIONS OF THE EMPLOYMENT BUSINESS
6.1. Throughout the term of this Agreement the Employment Business will:
6.1.1. pay the Intermediary the agreed Intermediary Fees in respect of the provision of the Intermediary Services in accordance with clause 8, subject to any right of set off or deduction in clause 5.5;
6.1.2. furnish the Intermediary with sufficient information about the Assignment in the relevant Assignment Details Form in order for the Intermediary to arrange for the Intermediary Services to be carried out; and
6.1.3. advise the Intermediary of any health and safety information or advice which it receives from the Hirer which may affect the Agency Worker during the Assignment.
7. TIMESHEETS AND INVOICING
7.1. At the end of each week of an Assignment (or at the end of the Assignment where an Assignment is for a period of less than 1 week or is completed before the end of a week) the Intermediary shall deliver to the Employment Business the Employment Business’ timesheet duly completed to indicate the number of hours worked by the Intermediary during the preceding week.
7.2. The timesheet must be signed by an authorised representative of the Hirer. The timesheet must be accompanied by an invoice from the Intermediary for the Intermediary Fees due from the Employment Business to the Intermediary for the hours worked in that week. Such invoice should bear the Intermediary’s name, the name of the Agency Worker who provided the Intermediary Services, the Intermediary’s company registration number and VAT number, and should state any VAT due on the invoiced sum.
7.3. In order to ensure prompt payment, such timesheets should be received by the Employment Business by no later than 0900am on Monday following the week to which they relate.
8. FEES
8.1. The Employment Business will pay the Intermediary the Intermediary Fees within 7 days of receipt of the Intermediary’s timesheet and invoice subject to:
8.1.1. the satisfactory performance of the Intermediary Services;
8.1.2. the Intermediary’s compliance with this Agreement;
8.1.3. the Employment Business’ receipt of the Intermediary’s invoice in accordance with clause 7 above; and
8.2. Subject to clause 8.9, if the Agency Worker:
8.2.1. has completed the Qualifying Period on the start date of the relevant Assignment, the Employment Business reserves the right to vary the Intermediary Fees if there is any variation in (a) (pay) of the Relevant Terms and Conditions; or
8.2.2. completes the Qualifying Period during the relevant Assignment, in order to comply with the equal treatment provisions of the AWR in relation to the Agency Worker in respect of pay, the Employment Business reserves the right to vary the Intermediary Fees from the day after the date on which the Agency Worker completes the Qualifying Period and thereafter if there is any variation in (a) (pay) of the Relevant Terms and Conditions.
Any such variation will be as set out in a variation to the relevant Assignment Details Form and the Intermediary shall ensure that, if at any time the Employment Business varies the Intermediary Fees in accordance with this clause 8.2, the Intermediary will, at the same time, make the same variations to the corresponding payments the Intermediary makes to the Agency Worker.
8.3. Under the AWR, on completion of the Qualifying Period the Agency Worker may be entitled to paid annual leave (save where the Intermediary is a Temporary Work Agency and it is agreed in the relevant Assignment Details Form that the Agency Worker has a permanent contract of employment with the Intermediary that satisfies the requirements of Regulation 10 of the AWR) and/or unpaid annual leave in addition to the Agency Worker’s entitlement to paid annual leave under the
Working Time Regulations provided by the Intermediary. If this is the case, any such entitlement(s), the date from which any such entitlement(s) will commence and how any payment for such entitlement accrues in respect of the relevant Assignment will be as set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form and the Intermediary will pass this information on to the Agency Worker and, if the Intermediary receives any such payment(s) for leave from the Employment Business, the Intermediary will make the same payment(s) to the Agency Worker.
8.4. Subject to clause 8.9, if the Agency Worker has completed the Qualifying Period on the start date of the relevant Assignment or following completion of the Qualifying Period during the relevant Assignment, the Agency Worker may be entitled to receive a bonus. The Intermediary will, and will procure that the Agency Worker will, comply with any requirements of the Employment Business and/or the Hirer relating to the assessment of the Agency Worker’s performance for the purpose of determining whether or not the Agency Worker is entitled to a bonus and the amount of any such bonus. If, subject to satisfying the relevant criteria, the Agency Worker is entitled to receive a bonus, the Employment Business will pay the bonus to the Intermediary and the Intermediary will pay the bonus to the Agency Worker.
8.5. The Intermediary shall be responsible for the deduction of any PAYE Income Tax and National Insurance Contributions and any other taxes and deductions payable in respect of the Agency Worker for any Assignment.
8.6. All payments due from the Employment Business will be made to the Intermediary and not to any third party or Agency Worker, any sub-contractor or assignee.
8.7. The Employment Business shall not be obliged to pay the Intermediary for any periods during which the Intermediary Services are not provided, whether this is due to the Intermediary being unable to provide the Intermediary Services or where the Hirer does not require the Intermediary Services or otherwise in respect of holidays (save as where may be the case in accordance with clause 8.3), illness or absence of the Agency Worker.
8.8. The Intermediary shall bear the cost of any training which the Agency Worker may require in order to perform the Intermediary Services.
8.9. Clauses 8.2 and 8.4 will not apply where the Agency Worker has a permanent contract of employment with the Intermediary that satisfies the requirements of Regulation 10 of the AWR.
9. TERM AND TERMINATION
9.1. An Assignment may be terminated by either the Employment Business or the Intermediary giving the other party in writing the period of notice specified in the relevant Assignment Details Form.
9.2. Notwithstanding clauses 9.1 and 9.3 of this Agreement, the Employment Business may without notice and without liability instruct the Intermediary to cease work on an Assignment at any time, where:
9.2.1. the Intermediary has acted in breach of the rules and regulations applicable to third parties providing services to the Hirer or to the Hirer’s own staff; or
9.2.2. the Intermediary has committed any serious or persistent breach of any of its obligations under this Agreement; or
9.2.3. the Hirer reasonably believes that the Intermediary has not observed any condition of confidentiality from time to time;
9.2.4. the Hirer is dissatisfied with the Intermediary’s provision of the Intermediary Services and has terminated the Assignment; or
9.2.5. either the Hirer or the Intermediary is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; or
9.2.6. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the Hirer or the Intermediary; or
9.2.7. an order is made for the winding up of the Hirer or the Intermediary, or where the Hirer or the Intermediary passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation or amalgamation where the resulting entity will assume all the obligations of the other party under this Agreement); or
9.2.8. the Intermediary or the Agency Worker is suspected of any fraud, dishonesty or serious misconduct; or
9.2.9. the Intermediary is unable to perform the Intermediary Services for 5 days or more; or
9.2.10. the Employment Business suspects or believes that the Intermediary has not complied with the requirements of ITEPA or the NICs Legislation.
9.3. The Intermediary 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 Hirer. In the event that the contract between the Employment Business and the Hirer is terminated for any reason the Assignment shall cease with immediate effect without liability to the Intermediary.
9.4. Failure by the Intermediary to give notice of termination as required in the relevant Assignment Details Form shall constitute a breach of contract and shall entitle the Employment Business to claim damages from the Intermediary for any resulting Losses suffered by the Employment Business.
10. INTELLECTUAL PROPERTY RIGHTS
The Intermediary acknowledges that all copyright, trademarks, patents and other intellectual property rights deriving from the Intermediary Services shall belong to the Hirer. Accordingly the Intermediary shall (and shall procure that any relevant Agency 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.
11. CONFIDENTIALITY
11.1. In order to protect the confidentiality and trade secrets of any Hirer and the Employment Business and without prejudice to every other duty to keep secret all information given to it or gained in confidence the Intermediary agrees on its own part and on behalf of the Agency Worker as follows:
11.1.1. not at any time whether during or after an Assignment (unless expressly so authorised by the Hirer 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 Hirer or the Employment Business with the exception of information already in the public domain;
11.1.2. to deliver up to the Hirer or the Employment Business (as directed) at the end of each Assignment all documents and other materials belonging to the Hirer (and all copies) which are in its possession including documents and other materials created by it or the Agency Worker during the course of the Assignment; and
11.1.3. not at any time to make any copy, abstract, summary or précis of the whole or any part of any document or other material belonging to the Hirer 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 Hirer or the Employment Business as appropriate.
12. COMPUTER EQUIPMENT WARRANTY
The Intermediary shall ensure that any computer equipment and associated software which it provides to the Agency Worker for the purpose of providing the Intermediary Services contains anti-virus protection with the latest released upgrade from time to time.
13. RESTRICTION
The Intermediary shall not (and shall procure that the Agency Worker shall not) during the Assignment or for a period of 6 months following the termination of the Assignment supply the services of the Agency Worker directly, or through any other person, firm or Employment Business, to any Hirer for which s/he has carried out Assignments at any time during the previous 6 months.
14. CONTRACT MONITORING AND AUDITS
14.1. The Employment Business reserves the right to audit the Intermediary on an ad hoc basis to ensure compliance with this Agreement and all statutory requirements in relation to all Agency Workers supplied to provide the Intermediary Services
including in particular but not limited to ITEPA and the NICs Legislation. The Employment Business will give the Intermediary 14 days’ notice of such audit.
14.2. To assist the Employment Business in its audit the Intermediary will:
14.2.1. maintain such records as are necessary to comply with this Agreement and all statutory requirements in relation to all Agency Workers supplied to provide the Intermediary Services, and will provide copies of the same to the Employment Business on request;
14.2.2. provide the Employment Business with access to its premises and original records relating to all Agency Workers supplied to provide the Intermediary Services.
15. LIABILITY
15.1. The Intermediary shall:
15.1.1. be liable for any Losses or injury to any party resulting from the deliberate and/or negligent acts or omissions of the Intermediary or Agency Worker during an Assignment; and
15.1.2. ensure the provision of adequate Employer’s Liability Insurance, Public Liability Insurance, Professional Indemnity Insurance and any other suitable policies of insurance in respect of the Intermediary and the Agency Worker during an Assignment and shall make a copy of the policy available to the Employment Business upon request.
16. INDEMNITY
The Intermediary shall indemnify and keep indemnified the Employment Business against any Losses suffered or incurred by the Employment Business by reason of any proceedings, claims or demands by any third party (including specifically, but without limitation, HM Revenue and Customs and any successor, equivalent or related body pursuant to the IR35 Legislation, ITEPA or the NICs Legislation and/or any supporting or consequential secondary legislation relating thereto).
17. SEVERABILITY
If any of the provisions of this Agreement 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.
18. 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.
19. THIRD PARTY RIGHTS
19.1. Save as set out in clause 19.2, none of the provisions of this Agreement is intended to be for the benefit of or enforceable by third parties (other than permitted assignees who shall be entitled to enforce the provisions of this Agreement as if original parties to it) and the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.
19.2. The Hirer shall be entitled to rely on and enforce the indemnities in clause 3.5 given by the Intermediary in favour of the Hirer, notwithstanding that the Hirer is not a party to this Agreement.
20. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law of England & Wales and is subject to the exclusive jurisdiction of the Courts of England & Wales.
Signed for and on behalf of the Employment Business
[print name here]
Signed for and on behalf of ……………………………………………. Ltd. (the Intermediary)
[print name here]
I am authorised to sign these Terms for and on behalf of the Intermediary.
Date
PurpleMoonlight said:
Do I understand this correctly.
Your Ltd pays the Intermediary to employ you personally as Agency Worker and drive for the Hirer?
If so, you appear indemnified by Clause 15.
No. My ltd co is the intermediary and I am the driver doing the driving for the ltd co. Any liability would fall on my ltd co, not me personally.Your Ltd pays the Intermediary to employ you personally as Agency Worker and drive for the Hirer?
If so, you appear indemnified by Clause 15.
How are you concluding that I (or my co) is indemnified by clause 15? Where has negligence been proved? What investigation has taken place to ascertain this? The only negligence is by the Hirer.
Edited by All that jazz on Tuesday 5th April 08:11
All that jazz said:
No. My ltd co is the intermediary and I am the driver doing the driving for the ltd co. Any liability would fall on my ltd co, not me personally.
How are you concluding that I (or my co) is indemnified by clause 15? Where has negligence been proved? What investigation has taken place to ascertain this? The only negligence is by the Hirer.
Oh I see, the Employment Business has provided the draft contract with them.How are you concluding that I (or my co) is indemnified by clause 15? Where has negligence been proved? What investigation has taken place to ascertain this? The only negligence is by the Hirer.
Edited by All that jazz on Tuesday 5th April 08:11
Then your Ltd is on the hook for your negligence.
PurpleMoonlight said:
All that jazz said:
No. My ltd co is the intermediary and I am the driver doing the driving for the ltd co. Any liability would fall on my ltd co, not me personally.
How are you concluding that I (or my co) is indemnified by clause 15? Where has negligence been proved? What investigation has taken place to ascertain this? The only negligence is by the Hirer.
Oh I see, the Employment Business has provided the draft contract with them.How are you concluding that I (or my co) is indemnified by clause 15? Where has negligence been proved? What investigation has taken place to ascertain this? The only negligence is by the Hirer.
Edited by All that jazz on Tuesday 5th April 08:11
Then your Ltd is on the hook for your negligence.
All that jazz said:
What negligence?
Hitting there roller shutter.You could probably argue that the failure of the business occupying the property to install any warnings of minimal clearance is a contributory factor, but at the end of the day the driver is responsible for the vehicle. It doesn't matter how the vehicle got in there in the first place, you were responsible for getting it out safely, which you didn't.
Why don't you offer 50%?
All that jazz said:
"Please could you advise if you are able to make a contribution toward damage you caused at [x]. Unfortunately it would cost [x] far too much in excess to put through their insurance
OP,A lot of stuff has been written by previous posters but I've just focused on the above part of your original post.
What they have said is not true, there is no excess to pay on tp motor insurance claims, the excess is for own damage only. The owners of the lorry you were driving have insurance, one assumes for any driver, so their policy would cover the warehouse door damage with no excess at all. And the policyholder or the insurer cannot by law pass on tp damage to the driver or anyone else. The vehicle insurer has to deal with it.
The only complication would be if the lorry and the warehouse are owned by the same person, in which case it wouldn't be a motor insurance claim but a buildings insurance claim under the impact section, which might well have an excess.
PurpleMoonlight said:
All that jazz said:
What negligence?
Hitting there roller shutter.You could probably argue that the failure of the business occupying the property to install any warnings of minimal clearance is a contributory factor, but at the end of the day the driver is responsible for the vehicle. It doesn't matter how the vehicle got in there in the first place, you were responsible for getting it out safely, which you didn't.
Why don't you offer 50%?
It strikes me that the OP has two choices; either fight it and look for somewhere else to work, as needing somewhere else won't be his choice, or cough up a reasonable contribution and keep working what sounds like a reasonable job - especially if they are paying on time.
It is a toughie but I don't see you have anywhere else to go. At the end of the day the driver is responsible for the vehicle, but at the same time the depot management should have ensured the driver was adequately trained & from the posts above they definitely haven't done that. You're only way to make that stick is to fight it but from what you've said the depot manager has a bad case of slopey shoulders.
You're going to have to balance the costs of making a contribution (cash + possibly increased premimum) against fighting it (no income till new job found + poor reference from hirer co & agency)
It is a toughie but I don't see you have anywhere else to go. At the end of the day the driver is responsible for the vehicle, but at the same time the depot management should have ensured the driver was adequately trained & from the posts above they definitely haven't done that. You're only way to make that stick is to fight it but from what you've said the depot manager has a bad case of slopey shoulders.
You're going to have to balance the costs of making a contribution (cash + possibly increased premimum) against fighting it (no income till new job found + poor reference from hirer co & agency)
All that jazz said:
Of course it does! If you have to make modifications to the suspension in order for a vehicle to fit through an opening but then negate to inform the person removing said vehicle at a later date that it doesn't fit unless you modify the suspension, then there's no possible way that the person can be negligent for something that they reasonably could not have known in advance. That's just absolutely absurd and any number of extreme and completely ridiculous scenarios could be dreamt up to apportion liability if that were the norm (which I'm fairly sure it isn't).
At the end of the day, you were in charge of the vehicle, regardless of your assumptions as logical as they may be, it doesn't matter, you were in charge of the vehicle and you drove into the shutter. Its quite black and white really, sure you can argue the case about not being briefed correctly etc. But you were in control and you should ensure your vehicle can move safetly.Good luck with this anyway.
Just read this thread.
What is the uninsured loss. I don't think one exists? both the building and the vehicle should be insured...
If you really want to twist the knife, report them to HSE, its highly unlikely they have all the required equipment and signage for having motor vehicles inside a building.
What is the uninsured loss. I don't think one exists? both the building and the vehicle should be insured...
If you really want to twist the knife, report them to HSE, its highly unlikely they have all the required equipment and signage for having motor vehicles inside a building.
Forums | Speed, Plod & the Law | Top of Page | What's New | My Stuff