4th Floor, 18 St. Cross Street, London, EC1N 8UN, United Kingdomoffice: 02030261886, mobile: 07402578569web: www.crewstar.uk e-mail: email@example.com
Terms of Engagement for PAYE Agency Workers (contract for services)
Bank Account Details:
This document sets out key information about your relationship as a work-seeker with us, as an employment business, including details about pay, holiday entitlement and other benefits. You can find more information at www.crewstar.uk
The Employment Agency Standards (EAS) Inspectorate is the government authority responsible for the enforcement of certain agency worker rights. You can raise a concern with them directly on 020 7215 5000 or through the ACAS helpline on 0300 123 1100, Monday to Friday, 8am to 6pm.
See Note 1
Name of employment business:
CREW STAR LTD registered in England and Wales (Company number 09974345) with registered office address: 4th Floor, 18 St. Cross Street, London, United Kingdom, EC1N 8UN
See Note 2
Your employer (if different from the employment business):
Harrow Green Limited. Registered in England. No. 1742531.
Registered Office: 2 Oriental Road, London, E16 2BZ.
See Note 3
Type of contract you will be engaged under:
Contract for services
See Note 4
Who will be responsible for paying you (if different from your employer):
Crew Star LTD
See Note 5
How often you will be paid:
Weekly in Arrears
See Note 6
Expected or minimum rate of pay:
See Note 7
Deductions from your pay required by law:
PAYE tax: £0.49
Employee NI contributions: £0.48
Employee pension contributions: £0.49
Net Pay: £7.65
See Note 8
Any other deductions or costs from your pay (to include amounts or how they are calculated):
See Note 9
Any fees for goods or services:
See Note 10
Holiday entitlement and pay:
See Note 11
See Note 12
Representative example of your pay
Example rate pay:
See Note 13
Deductions from your wage required by law:
PAYE tax: £1.4
Employee NI contributions: £1.09
Employee pension contributions: £0.54
Net Pay: £10.97
See Note 14
Any other deductions or costs from your wage:
See Note 15
See Note 16
Example net take home pay:
See Note 17
Part A: Information required under the Conduct of Employment Agencies and Employment Business Regulations 2003 (or The Conduct of Employment Agencies and Employment Businesses (Northern Ireland) Regulations 2005)
Name of the Hirer:
Nature of the Hirer’s business:
Name of Hirer’s contact to report to on arrival:
Operations Department 02086331900
Start date of the Assignment:
Likely duration of the Assignment:
Description of duties:
Location of work:
Hours of work:
Based on shifts
The experience, training (see also Part B), qualifications and any authorisation necessary or required by law or a professional body:
Any known health and safety risks and the steps the hirer has taken to reduce the risks:
Any expenses payable:
Actual Rate of Pay:
Intervals of payment:
(N.B Under the Conduct Regulations the intervals of payment should be set out in the Agency Worker’s contract)
Weekly in arrears
Number of [paid/unpaid] annual leave days
Particulars for worker
Day and hours of work confirm:
· Whether or not the Agency Worker has normal working hours
· whether they are variable i.e. shift or rota patterns
· how they vary.
Working hours are 7/ 7 on the request.
Duration of the contract:
Length of notice the Agency Worker must give and should receive to terminate the contract or assignment
Any of the Employment Business or the Hirer may terminate the Agency Worker’s Assignment at any time without prior notice or liability.
Any other remuneration (apart from pay)
Entitlement to sick leave and pay
(see clause 8 in your contract)
1.1. The Agency Worker may be eligible for statutory sick pay (SSP) provided that s/he meets the relevant statutory criteria.
1.2. The Agency Worker must give the Employment Business evidence of incapacity to work, which may be by way of a self-certificate for the first 7 days of incapacity and a doctor’s certificate thereafter.
For the purposes of SSP there is one qualifying day per week during the course of an Assignment and that qualifying day shall be the Wednesday in every week
Is payable if qualifies to statutory requirements.
Any other benefits
Any other paid leave
· entitlements provided by employment business
· requirements for the role
· requirements at worker’s own cost.
Any training will be provided at the clients premises.
Any probation period including conditions and duration:
No probation period
Pensions and pensions schemes such as automatic enrolment or contractual pensions schemes:
" If you are eligible, you will be enrolled automatically into the occupational pension scheme in accordance with the Pensions Act 2008. We do enrol you with NEST pension. If you request to enrol with different pension provider, you have to inform as prior to the employment.
Any collective agreements that apply to the Agency Worker:
Any information on disciplinary rules and grievance procedures:
Grievance Procedures are available on the company website www.crewstar.uk
If the Agency Worker works outside the U.K for more than a month confirm:
· currency of pay,
· any additional remuneration,
· benefits, and
· terms and conditions to return to the UK.
“Actual Rate of Pay” means, unless and until the Agency Worker has completed the Qualifying Period, the rate of pay which will be paid for all time worked during an Assignment for each hour worked, as set out in the relevant Assignment Details Form;
“Actual QP Rate of Pay” means the rate of pay which will be paid to the Agency Worker if and when s/he completes the Qualifying Period, as set out in any variation to the relevant Assignment Details Form;
“Agency Worker” means
supplied by the Employment Business to provide services to the Hirer;
“Agreed Deductions” means any deductions the Agency Worker has agreed can be made from their pay; [see Note 18]
“Assignment” means assignment services to be performed by the Agency Worker for the Hirer for a period of time during which the Agency Worker is supplied by the Employment Business to work temporarily for and under the supervision and direction of the Hirer;
“Assignment Details Form” means written confirmation of the assignment details to be given to the Agency Worker upon acceptance of the Assignment;
“AWR” means the Agency Workers Regulations 2010[see Note 19]
“Calendar Week” means any period of 7 days starting with the same day as the first day of the First Assignment;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 or the Conduct of Employment Agencies and Employment Businesses Regulations (Northern Ireland) 2005; [see Note 20]
“Confidential Information” means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Hirer or Employment Business or their business or affairs (including but not limited to these Terms, data, records, reports, agreements, software, programs, specifications, know-how, trade secrets and other information concerning the Assignment) in any form or medium whether disclosed or granted access to whether in writing, orally or by any other means, provided to the Agency Worker or any third party in relation to the Assignment by the Hirer or the Employment Business or by a third party on behalf of the Hirer whether before or after the date of these Terms together with any reproductions of such information in any form or medium or any part(s) of such information;
“Control” means (a) the legal or beneficial ownership, directly or indirectly, of more than 50% of the issued share capital or similar right of ownership; or (b) the power to direct or cause the direction of the affairs and/or general management of the company, partnership, statutory body or other entity in question, whether through the ownership of voting capital, by contract or otherwise, and "Controls" and "Controlled" shall be construed accordingly;
“Data Protection Laws” means the Data Protection Act 2018, the General Data Protection Regulation (EU 2016/679) and any applicable statutory or regulatory provisions in force from time to time relating to the protection and transfer of personal data; [see Note 21]
“Deductions” means any deductions which the Employment Business may be required by law to make and, in particular, in respect of PAYE pursuant to Sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003 and Class 1 National Insurance Contributions;
“Emoluments” means any pay in addition to the Actual QP Rate of Pay;
“Employment Business” CREW STAR LTD registered in England and Wales (Company number 09974345) with registered office address: 4th Floor, 18 St. Cross Street, London, United Kingdom, EC1N 8UN; [see Notes 22 and 23]
“Engagement” means the engagement (including the Agency Worker’s acceptance of the Hirer’s offer), employment or use of the Agency Worker by the Hirer or any third party to whom the Agency Worker has been introduced by the Hirer, on a permanent or temporary basis, whether under a contract of service or for services, and/or through a company of which the Agency Worker is an officer, employee or other representative, an agency, license, franchise or partnership arrangement, or any other engagement; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;
“First Assignment” means:
“Hirer” means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) to whom the Agency Worker is supplied or introduced; [See Note 24]
“Hirer's Group” means (a) any individual, company, partnership, statutory body or other entity which from time to time Controls the Hirer, including (but not limited to) as a holding company as defined in section 1159 of the Companies Act 2006; and (b) any company, partnership, statutory body or other entity which from time to time is Controlled by or is under common Control with the Hirer, including (but not limited to) as a subsidiary or holding company as defined in section 1159 of the Companies Act 2006; [See Note 24]
“Hourly Rate” means £[x per hour/per day] being the minimum gross rate of pay that the Employment Business reasonably expects to achieve, for all hours worked by the Agency Worker; [See Note 25]
“Leave Year” means the period during which the Agency Worker accrues and may take statutory leave commencing: on the date that the Agency Worker starts an Assignment or a series of Assignments [See Note 26]
“Period of Extended Hire” means any additional period that the Hirer wishes the Agency Worker to be supplied for beyond the duration of the original Assignment or series of assignments as an alternative to paying a Transfer Fee;
“Qualifying Period” means 12 continuous Calendar Weeks during the whole or part of which the Agency Worker is supplied by one or more Temporary Work Agencies to the relevant Hirer to work temporarily for and under the supervision and direction of the relevant Hirer in the same role, and as further defined in the Schedule to these Terms;
“Relevant Period” means the later of (a) the period of 8 weeks commencing on the day after the last day on which the Agency Worker worked for the Hirer having been supplied by the Employment Business; or (b) the period of 14 weeks commencing on the first day on which the Agency Worker worked for the Hirer having been supplied by Employment Business or 14 weeks from the first day of the most recent Assignment where there has been a break of more than 6 weeks (42 days) since any previous assignment; [See Note 27 ]
“Temporary Work Agency” means as defined in the Schedule to these Terms;
“Terms” means these terms of engagement (including the attached schedule) together with any applicable Assignment Details Form;
“Transfer Fee” means the fee payable by the Hirer to the Employment Business in accordance with clause 3.7, as permitted by Regulation 10 of the Conduct Regulations;
“Type of Work” Position is held by temporary worker is Porter [See Note 28] and
“WTR” means the Working Time Regulations [See Note 29]
For the purposes of the Conduct Regulations:
For the purposes of Section 1 of the Employment Rights Act:
assignments with any member of the Hirer's Group; and/or
least two occasions worked in a role that was not the same role as the
In certain circumstances the Employment Business may require the Agency Worker to take paid annual leave at specific times or notify the Agency Worker of periods when paid annual leave cannot be taken. Where the Agency Worker has given notice of a request to take paid annual leave in accordance with this clause, the Employment Business may give counter-notice to the Agency Worker to postpone or reduce the amount of leave that the Agency Worker wishes to take. In such circumstances the Employment Business will inform the Agency Worker in writing giving at least the same length of notice as the period of leave that it wishes to postpone or reduce it by. [See Note 45]
If the Agency worker is accepting an assignment for the next day and is not committing to it without a reasonable excuse (due to illness or pregnancy), will be liable to a deduction from his next pay of £40.00. Is acceptable to cancel the next day assignment once approved at no extra charge if is cancel by 16.00.
The Agency Worker acknowledges that all copyright, trademarks, patents and other intellectual property rights deriving from services carried out by him/her for the Hirer during the Assignment shall belong to the Hirer. Accordingly, the 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.
The Agency Worker acknowledges that the Employment Business must process personal data about him/her in order to properly fulfil its obligations under these Terms and as otherwise required by law in relation to his/ her engagement in accordance with the Data Protection Laws. Such processing will principally be for personnel, administrative and payroll purposes.
If any of the provisions of these Terms shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining Terms, which shall continue to be valid to the fullest extent permitted by applicable laws.
All notices which are required to be given in accordance with these Terms shall be in writing by either forms:
None of the provisions of these Terms are intended to be for the benefit of or enforceable by third parties and the operation of the Contracts (Rights of Third Parties) Act 1999 [Contracts Rights of Third Parties) Act (Scotland) 2017)]is excluded.
These Terms are governed by the law of England & Wales/Scotland/ Northern Ireland and are subject to the exclusive jurisdiction of the Courts of England & Wales/Scotland/ Northern Ireland. [See Note 54]
The worker’s name is not required under Regulation 13A. It is optional. You may wish to insert the worker’s name for the purposes of confirming who the document was issued to.
Insert the name of the employment business engaging the worker.
This is not a requirement under Regulation 13A however this may be relevant if another entity will be engaging and paying the worker, i.e. a separate payroll company.
Insert the type of contract, e.g. contract for services, contract of employment, apprenticeship contract or other type of contract.
Insert details of the employment business, i.e. your company.
Insert intervals of payment, i.e. daily/weekly/monthly.
Insert ‘no less than national minimum wage’ or the minimum amount a worker in the specific sector and role may typically expect to earn.
Insert deductions required by law; e.g. PAYE tax, employee NI contributions, employee pension contributions (i.e. auto enrolment) and student loan (if known).
Insert any contractual deductions such as private healthcare or enhanced pension scheme (though it is unusual for temporary workers to receive such benefits).
Insert details of any goods or services that the employment business charges for (these should not fall within the scope of ‘providing work finding services’ which employment businesses cannot charge for). Relevant goods or services might include DBS fees, CV writing fees, interview preparation fees and training fees. You can state where these are one-off deductions.
Insert the statutory minimum annual leave entitlement of 5.6 weeks/28 days for full time employees or for part time workers insert that it will be pro-rated accordingly.
Insert any non-monetary benefits that will be provided. These could include access to collective facilities provided by a hirer on day one of an assignment under the Agency Workers Regulations 2010 though we recognise these will vary from client to client.
These figures can be estimated and do not need to exactly reflect the specific rate of pay the temporary worker will eventually receive. However, they should show in a realistic way the deductions made to a proposed rate of pay and how those deductions will affect the worker’s pay. This should reflect a single prospective period based on the intervals shown under ‘General Information’.
Insert an example weekly rate of pay; e.g. £348.80 per week which is NLW x 40 hours.
Insert figures for statutory deductions which include, income tax, national insurance and employee pension contributions. This will include the relevant tax-free allowance and basic tax rate. Where other statutory deductions are known, such as a student loan, then these should be inserted here also.
Insert figures for other non-statutory deductions from pay; e.g. private healthcare or enhanced pension employee contributions.
Insert figures for deductions; e.g. DBS checks, training etc.
Insert the figure for example net take home pay after all the deductions above have been made.
The Employment Rights Act 1996 (in England, Scotland and Wales) and the Employment Rights (Northern Ireland) Order 1996 provide that employers may not withhold pay or make a deduction from wages unless it is permitted by statute e.g. tax and NICs, or the worker has given their written consent in advance of the deduction being made.
For example, the Agency Worker has asked you to deduct trade union subscriptions, pension contributions, child maintenance or other court ordered deductions. Alternatively, you may ask the Agency Worker to agree to deductions for repayment of loans, training costs and other services provided to the Agency Worker (see below). However, you cannot deduct for personal protective equipment or for losses incurred as a result of the poor performance of the work. If appropriate you would need to bring a claim for damages against a temporary worker to recover such losses.
Training – you cannot require the Agency Worker to take additional services, including training, from you as a condition of finding work though you. You can charge for training if the Agency Worker has been given the option of obtaining and paying for that training elsewhere.
Transport – if supplying into the GLAA regulated sector you cannot deduct transport costs from an Agency Worker’s pay. You can however deduct the repayment of any loan you may have made for the cost of the transport. Alternatively, you can obtain payment via direct debit. Please always check the current GLAA Licensing Standards regarding transport deductions.
The Agency Workers Regulations 2010 apply in England, Scotland and Wales. They came into force on 1 October 2011. If supplying in England, Scotland and Wales only delete the text in square brackets.
The Agency Workers (Northern Ireland) Regulations 2011 apply in Northern Ireland. They came into force on 5 December 2011. If supplying in Northern Ireland only delete the reference to the Agency Workers Regulations 2010.
If supplying in all of England, Scotland, Wales and Northern Ireland keep references to both sets of regulations and delete the square brackets only.
The Conduct of Employment Agencies and Employment Businesses Regulations 2003 apply in England, Scotland and Wales. If supplying in England, Scotland and Wales only delete the text in square brackets.
The Conduct of Employment Agencies and Employment Businesses Regulations (Northern Ireland) 2005 apply in Northern Ireland. If supplying in Northern Ireland only delete the reference to the Conduct of Employment Agencies and Employment Businesses Regulations 2003 and remove “[and/ or]”.
If supplying in all of England, Scotland, Wales and Northern Ireland keep references to both sets of regulations and delete the square brackets only.
“Data Protection Laws”
We have updated this to refer to the General Data Protection Regulation which came into effect on 25 May 2018 and the new Data Protection Act 2018.
For more detail see the GDPR section of the REC Legal Guide.
For more information, see the ICO Guide to the GDPR, the ICO guidance on legitimate interests and the ICO interactive legal basis guidance tool.
Limited companies must have a registered office to which all post can be directed (and where it will be considered received by the company). Companies may also have a trading address which is different to the registered office address. You can state either the registered office or the trading address but if either address changes, you must notify the Agency Worker.
If the Employment Business is a Limited Liability Partnership insert the following on page 1.
“Hirer” and “Hirer’s Group”
It is important to understand which Hirers may belong to the Hirer’s Group so that the Employment Business understands when an Agency Worker has/ has not completed the Qualifying Period because s/he has worked for more than one Hirer.
It should be relatively straightforward in the private sector to know what companies belong to a group. However it can be less clear in the public sector.
Health sector ‒ a NHS Trust which comprises different hospitals will be one Hirer for the purposes of AWR. So, time spent in different hospitals within the same trust (i.e. Hirer’s Group) will all count towards the same qualifying clock.
Education ‒ the Hirer/ Hirer’s Group will be determined by the type of school the agency worker is supplied to. For example, time spent in more than one school within the same local authority will count towards the same qualifying clock. The same applies for academy trusts. For more details on the application of the AWR within education please see DFE’s AWR 2010: supply teachers guidance. “
See also Clause 3.8.
It is a requirement of the Conduct Regulations that you set out the minimum rate of remuneration that the Employment Business reasonably expects to achieve, for all hours worked by the Agency Worker.
The leave year can either start on a date of your choice i.e. to coincide with your business’s leave year, or the date on which the Agency Worker commences an Assignment or series of Assignments.
The Relevant Period is set by Regulation 10 of the Conduct Regulations (and thus cannot be changed by employment businesses).
“Type of Work”
Regulation 14 of the Conduct Regulations requires that you agree with the worker the type of work which the worker is seeking.
The Working Time Regulations 1998 apply in England, Scotland and Wales. If supplying in England, Scotland and Wales only delete the text in square brackets.
The Working Time (Northern Ireland) Regulations 1998 apply in Northern Ireland. If supplying in Northern Ireland only delete the reference to the Working Time Regulations 1998.
This statement is required to comply with Regulation 15 of the Conduct Regulations. These terms are a contract for services and not a contract of employment. If you choose to employ your temps on contracts of employment you will need to use different terms of business, but before doing so you should seek your own legal advice. REC has model contracts of employment and terms of business are available to download from www.rec.uk.com.
Under the AWR, if the Agency Worker has completed the Qualifying Period and is entitled to equal treatment in respect of pay and working conditions, if the Hirer varies the relevant terms and conditions of a direct hire, the Employment Business must ensure that the Agency Worker receives equal treatment in this respect, best achieved by varying the equivalent provision(s) in the Agency Worker's contract (Regulation 5(2) AWR).
The Conduct Regulations require that you state you are acting as an employment business i.e. you are supplying temporary staff.
Throughout the contract:
· Use the reference to the Employment Agencies Act 1973 if supplying in England, Wales or Scotland.
· Use the reference to the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 if supplying in Northern Ireland.
(Assignments details and Written Statement information to be provided)
The Conduct Regulations and ERA require information to be provided to the worker and the clause sets out some of the information in the form.
(Assignments and information to be provided)
To ensure that the Agency Worker is aware of any agreement with a Hirer for a fee or extended period of hire in relation to a direct engagement the REC recommends that this clause is inserted into the Agency Worker’s terms of engagement. It is essential under the REC Code of Professional Practice that this information is given in writing to each Agency Worker before s/he is sent on Assignment.
(Entitlements under the AWR)
Rights subject to completion of the Qualifying Period:
Under the AWR, on completion of the 12-week qualifying period (see the definition of "Qualifying Period" in clause 1 and the Schedule), an agency worker is entitled to equal treatment in respect of pay and working conditions. Working conditions include (amongst other things) terms and conditions relating to the duration of working time, night work, rest periods and rest breaks (Regulation 6(1) of the AWR). The Agency Worker will be entitled to different terms and conditions relating to the duration of working time, night work, rest periods and/or rest breaks (other than the rights and entitlements relating to the same under the WTR) as if s/he had been directly hired by the Hirer.
Subject to breaks taken the earliest date an agency worker could qualify for equal treatment was 24 December 2011 in England, Scotland and Wales or 27 February 2012 in Northern Ireland.
Day One rights:
From day one of the assignment, the Agency Worker has the following rights:
1) to be treated no less favourably than a comparable employee or worker of the Hirer in relation the collective facilities and amenities (e.g. canteen, childcare facilities and transport services) provided by the Hirer (unless the Hirer can justify less favourable treatment on objective grounds); and
2) the right to be informed by the Hirer of any relevant vacant posts with the Hirer, to give the Agency Worker the same opportunity as a comparable employee or worker of the Hirer to find permanent employment with the Hirer. However, this does not mean that an agency worker has a right to be employed by the client, nor does it mean that an agency worker has a further right to have a preference over existing direct employees of the client. (Coles v Ministry of Defence (UKEAT/0403/14/RN)).
The Hirer will be liable for any failure to provide these Day One rights.
Form G sets out the information from the Hirer of the terms and conditions they would have given to the agency worker if they had recruited the worker directly.
See REC AWR Factsheet 4 for further information on equal treatment.
(Agency Worker’s Obligations)
An agency worker will be entitled to equal treatment in respect of pay and working conditions if s/he has completed the 12 week qualifying period (see the definition of "Qualifying Period" in clause 1 and the Schedule) by working in the same role with the same hirer for 12 Calendar Weeks (see the definition of "Calendar Week" in clause 1), during one or more assignments (Regulation 7 of the AWR).
Certain breaks will only suspend the 12-week qualifying clock whilst others (related to pregnancy, maternity, adoption and paternity leave) will not stop it at all. These are set out in the Schedule. Any weeks worked prior to 1 October 2011 (or 5 December 2011 in Northern Ireland) do not count towards the 12-week qualifying period.
12 continuous calendar weeks
The AWR provide that the agency worker achieves the qualifying period by working ‘in the same role for the same hirer for 12 continuous calendar weeks during one or more assignments.’
The AWR say that ‘any week during the whole or part of which an agency worker works is counted as a calendar week.’
The AWR do not define ‘week’ nor do they specify that for example, a week commences on a Monday or Sunday etc. We have taken the view, based on the available guidance that the week is a seven-day period which begins with the start day of the agency worker’s assignment.
However, it is clear that the qualifying period for the agency worker is tied to the time that the agency worker is supplied to the particular hirer rather than to the particular employment business that the agency worker works through. On balance it could be argued to be inconsistent with the AWR if the start day of the agency worker’s qualifying weeks changed each time he or she moved employment business (while being supplied in to the same role with the same hirer).
In the absence of any clear advice/guidance to the contrary we have taken the view that if the agency worker starts an assignment with a hirer on a Tuesday for example, a qualifying week will be achieved if the agency worker works in that assignments on any day in a seven day period starting from the Tuesday, regardless of whether he or she moves to a different employment business.
An agency worker works "in the same role" unless: (a) the agency worker has started a new role with the same hirer, whether supplied by the same or a different temporary work agency; (b) the work or duties that make up the whole or the main part of that new role are substantively different from the work or duties that made up the whole or the main part of the previous role; and (c) the temporary work agency has informed the agency worker in writing of the type of work the agency worker will be required to do in the new role (Regulation 7(3) of the AWR). The temporary work agency can do this by giving the agency worker a new assignment details form.
The agency worker only has to work in the same role for the same hirer for 12 weeks in order to complete the Qualifying Period, but this could be via one or more temporary work agencies. The Employment Business therefore needs to be informed by the Agency Worker whether s/he has worked in the same role with the relevant Hirer via any third party so that the Employment Business can assess whether the Agency Worker has already acquired qualifying weeks or has already completed the 12-week qualifying period (clause 4.2.1).
Please see REC AWR Factsheet 3 and the Guidance for more information.
The AWR contain anti-avoidance measures (Regulation 9) to prevent temporary work agencies or their clients/hirers structuring assignments in such a way as to prevent an agency worker from acquiring the 12-week qualifying period for equal pay and working conditions.
The Employment Business therefore needs to be informed of the matters set out in clause 4.2.3 so that the Employment Business can assess whether previous assignments with the Hirer have been structured in such a way as to attempt to avoid the application of the AWR and so the Agency Worker will be deemed to have completed the 12-week qualifying period.
Please see REC AWR Factsheet 5 and the Guidance for more information.
If you suffer any loss as a result of the Agency Worker’s acts or omissions you may not recover these from the Agency Worker by way of deductions from pay owed to them but must make a separate claim for damages, if necessary in a court of law.
The Conduct Regulations require you to give an undertaking to pay the Agency Worker for hours actually worked whether or not payment has been received from the Hirer. If the Agency Worker is unable to produce a signed timesheet but there is no dispute that the agency worker actually worked the hours that s/he is claiming for, you must pay her/him but you may delay payment in order to make enquiries to confirm that s/he did in fact work those hours.
Regulation 12 of the Conduct Regulations provides that the Employment Business may not withhold payment from the Agency Worker for hours that the Agency Worker has actually worked. You need to be aware that if a Hirer does refuse to sign a timesheet, payment will nevertheless be due to the Agency Worker unless your proper and reasonable investigations provide clear evidence that the Agency Worker did not work those hours. Make sure you keep any evidence in the form of documents or a statement from the Hirer in case you receive a claim for deductions from wages from the Agency Worker.
In addition please note that under Regulation 12(c) you may not reduce the Agency Worker’s hourly rate or otherwise refuse to pay him for all or any part of the hours actually worked in circumstances where the Agency Worker has failed to complete a whole Assignment, has been late for an Assignment or for any other reason. The Agency Worker must always be paid for hours actually worked regardless of any extraneous circumstances.
Regulation 12 of the Conduct Regulations prohibits employment businesses from withholding monies from work-seekers in respect of any work done by the work-seeker on any of the following grounds:
· non-receipt of payment from the client i.e. you cannot have a pay when paid clause;
· work-seeker’s failure to produce documentary evidence;
· the work-seeker not having worked during any period other than that to which the payment relates; or
· any matter within the control of the employment business.
However, this clause will allow you to deduct monies owed by the work-seeker (agency worker) to the employment business (employer).
(Pay and deductions – right to deduct)
Clause 6.6 is an optional clause which should be incorporated into the Terms where the Employment Business provides any clothing or equipment to the Agency Worker to be used in the course of their Assignment. This clause will be particularly important for any Employment Businesses who provide personal protective equipment to their Agency Workers, for example where supplying Agency Workers into the construction sector.
Clause 6.6 creates a contractual obligation on the Agency Worker to take reasonable care of any clothing and/or equipment provided to them by the Employment Business. The clause also creates an obligation on the Agency Worker to return the equipment or clothing to the Employment Business upon termination of these Terms or when requested to do so by the Employment Business
If the Agency Worker fails to comply with his/ her obligations in this clause the Employment Business can make deductions to their wages to recover any replacement costs. As the Agency Worker will have breached a contractual obligation, the Employment Business will be able to make deductions to their wages to below the national minimum wage.
However, the Employment Business will need to take into account any everyday wear and tear before making any deductions to the wages. If you deduct the full replacement cost in circumstances where it is simply a case of everyday wear and tear, this risks the clause being unreasonable and therefore unenforceable. It should also be noted that (where the clothing or equipment has been returned) the clause only allows deductions where the Agency Worker has not taken reasonable care of the clothing or equipment.
(Pay and Deductions)
This is an optional clause.
is an EU national *, working temporarily outside of their home state. In the latter case, the individual must provide the required certificate to the employment business and is required to continue to pay national insurance contributions (or their national equivalent) in their home state. This wording need only be included if the agency worker is a national of another EU state * and resident temporarily in the UK. If in doubt seek advice from HMRC.
* At the time of writing we do not know how Brexit will affect this.
(Statutory paid annual leave under the WTR)
Under the WTR, workers are entitled to request as much paid annual leave at any one time, up to the statutory minimum, except during their first leave year when they are restricted to requesting one-twelfth per month. To prevent paying workers for more annual leave than they have accrued this clause limits the amount of leave they will be paid for to the amount that the worker will have accrued by the time they take their leave, regardless of the amount of leave they request. For guidance on how to calculate accrued holiday pay please see the REC’s online Legal Guide.
Update January 2019: Please note that following the Court of Justice for the European Union ruling in Max Planck Gesellschaft v Shimizu there is now an obligation for employers (including employment businesses) to inform workers of their right to take annual leave, and when this expires. The CJEU found that the Working Time Directive requires that the right to any paid leave not taken by an employee within the leave year should not automatically be lost unless the employer has taken steps to bring the potential that this leave will be lost to the worker’s attention.
Employers have no legal obligation to force employees to take leave but must ‘be able to show that it has exercised all due diligence in enabling the worker actually to take the paid annual leave to which he is entitled under EU law’. Where the worker has ‘refrained from taking his paid annual leave deliberately and in full knowledge of the ensuing consequences’ then the employer will not have to carry over the leave or pay an allowance in lieu for this. This will only apply where the annual leave was left untaken for reasons not relating to absences due to maternity or sickness.
Employment businesses are already required to comply with the Conduct Regulations by providing ‘details of any entitlement to annual holidays and to payment in respect of such holidays’ in the written agreement provided before commencing work-finding services. In addition, for employed agency workers on contracts of service employment businesses must also comply with the Employment Rights Act 1996 in providing a written statement of particulars including terms about ‘entitlement to holidays, including public holidays, and holiday pay’. As well as these regulatory requirements, it is also good practice to inform workers of:
· When the leave year starts; and
· The procedure required for them to book annual leave.
We also recommend that employment businesses remind the worker part way through the leave year to take any remaining leave before the leave year comes to an end. This would need to be done in good time to adhere to the CJEU ruling.
(Statutory annual leave entitlements under the AWR)
Under the AWR, after completing the 12-week qualifying period (see the definition of “Qualifying Period” in clause 1 and the Schedule), an agency worker is entitled to equal treatment in respect of pay and working conditions. Pay includes holiday pay and working conditions include terms and conditions relating to annual leave (Regulations 6(1) and (2)). An agency worker will be entitled to the same payment for annual leave (including over and above the minimum entitlement under the WTR) as if s/he had been directly recruited by the Hirer.
This includes the same terms and conditions relating to annual leave as a direct recruit of the Hirer, including the ability to take any leave entitlement over and above the minimum entitlement under the WTR. BIS have confirmed in the Guidance that the Employment Business can pay the Agency Worker in lieu of taking any such additional leave and that this can be rolled up as part of the hourly/daily rate (if you do this, we strongly recommend that it is itemised separately on the payslip) or given as a one off payment at the end of the assignment.
However, under the AWR the agency worker is entitled to take any such paid additional leave, and so there is a risk in rolling up the payment as part of the hourly/daily rate or giving it as a one off payment at the end of the assignment. A risk-free approach would be to allow the agency worker to take the leave and pay the agency worker at that time.
Please see REC AWR Factsheet 4 for more information and REC’s Legal Guide.
(Statutory paid annual leave)
By insisting that they work when they want to take leave you may be altering the nature of the contract to a contract of employment (though a single factor such as this is unlikely to be conclusive). So, any refusal or postponement of leave from the time they request may only be in the form of a request that they take paid leave at a time that suits you or the Hirer.
No fixed hours: For the purpose of calculating statutory holiday pay under the Working Time Regulations 1998, where a worker does not have fixed hours under the contract (as is typically the case for agency workers), holiday pay should be calculated as an average of both standard and overtime rates for the hours actually worked over the reference period.
Reference period: On 6 April 2020 the holiday pay reference period for calculating holiday pay was extended from 12 to 52 weeks. If need be, the agency can go back a maximum of 104 weeks to reach the 52-week reference period. Alternatively, if a worker has not yet worked for 52 weeks, the reference period is the total number of weeks for which the worker has worked. BEIS have updated their holiday pay guidance for workers without fixed hours or pay.
Fixed hours: In contrast where a worker does have fixed hours under the contract (and pay does not vary depending on the time that work is done or on the amount of work done), holiday pay is calculated on a week’s pay under the contract. Historically this would take into account basic pay only and not overtime payments. This would often be applicable to the employees of the hirer for who would more commonly have fixed in their contracts, although some agency workers have fixed hours in the contract.
However, in November 2014, the Employment Appeal Tribunal ruled in the case of Bear Scotland v Fulton that in relation to workers with fixed hours in the contract, payment for non-guaranteed overtime (i.e. that which the employer is not required to offer but which the worker is required to accept) should be included when calculating holiday pay. As a result, many employers have since reviewed their holiday pay provisions as it is no longer safe to exclude overtime payments in these circumstances. Note that it was already a requirement to include payment for compulsory overtime (i.e. that which the employer is required to offer and the worker is required to do) in holiday pay. There has been no specific determination about voluntary overtime (i.e. that which the employer can choose to offer and the worker can choose to do), but continuing to exclude it when calculating holiday pay does carry some risk.
April 2016 – In February 2016 the Employment Appeal Tribunal confirmed that commission earned should be included when calculating the rate of holiday pay (Lock v British Gas). This decision was later upheld by the Court of Appeal. British Gas sought permission to appeal to the Supreme Court but permission was not granted, meaning that the Court of Appeal decision stands (commission payments to be included in holiday pay calculations for Mr Lock).
See the REC Legal Guide for further information on holiday pay.
Under the WTR, the minimum entitlement to paid annual leave is not in addition to bank or public holidays. Agency Workers are not automatically entitled to take bank or public holidays as annual leave and so may be asked to work on those days. Alternatively, if they choose to take leave on those days they may be paid as part of their minimum entitlement under the WTR. The first option indicates that leave taken on a bank or public holiday will automatically count as part of their entitlement under the WTR. The second option gives the Agency Worker the right to choose whether to count those days as part of their entitlement under the WTR.
See Note 24 above. If the Agency Worker has already completed the 12-week qualifying period (see the definition of “Qualifying Period” in clause 1 and the Schedule) at the start date of the Assignment, select the option for this clause which matches what the Agency Worker would have been given if recruited directly by the Hirer. If the Agency Worker completes the Qualifying Period during the Assignment, you will need to change this clause by variation to the Assignment Details Form if the option you have chosen does not match what the Agency Worker would have been given if recruited directly by the Hirer.
We have added the following optional wording to require the Agency Worker to repay any holiday pay owed in excess of final pay:
[If, following such deduction the Agency Worker owes further monies in respect of pay received for annual leave taken but not accrued at the time of Termination, the Agency Worker will repay such monies within [x] days of termination of these Terms.]
Delete if not required.
A worker who claims SSP will only be eligible to receive payment if s/he is absent due to illness for 4 or more consecutive qualifying days and subject to satisfying all relevant criteria. A “qualifying day” is one on which the worker normally works. So if a worker normally works Monday to Friday those will be the qualifying days.
However, if a worker works on an intermittent basis with no regular pattern of work it is possible to rely on this clause to stipulate that a worker must be absent on 4 consecutive Wednesdays in order to qualify for SSP. This argument should only be used where there is genuinely no obvious pattern of work. SSP is payable from the fourth day of sickness. For more information on SSP see the REC’s online Legal Guide at: http://www.rec.uk.com/legal_guide/.
8.4 and 8.5
(Statement of Fitness to Work)
The “Statement of Fitness to Work” was introduced on 6 April 2010 to replace the doctor’s certificate issued by doctors to sign an individual off sick as unfit to work. The Statement allows the doctor to confirm either that the individual is not fit to work, or that he or she MAY return to work if it is possible for particular adjustments to be made (e.g. reduced hours, amended duties).
It is still the employer’s choice as to whether the individual is permitted to return to work, but employers need to take care not to discriminate against workers who have a disability where there may be a specific legal requirement to make adjustments in any case to allow the worker to return to work. (Remember, for the purposes of SSP the “employer” is whoever pays the worker, in this instance the Employment Business).
Where an employer cannot accommodate any changes recommended under the Statement it is taken as the worker being not fit for work. The period covered will be that as stated by the doctor. The worker is not required to obtain a further Statement as a result of the employer not being able to accommodate any changes and the worker will continue to receive SSP.
If an employer cannot facilitate the changes suggested by the doctor in the Statement and the worker disagrees with the employer’s decision, this should be resolved by the employer’s complaints procedure.
If the worker disagrees with the employer’s interpretation of the doctor’s suggestions, or the employer is able to offer changes to support the return to work but the worker refuses, the employer should seek legal advice. In the event of a dispute concerning adjustments, the employer should not generally cease paying SSP until such dispute is resolved and/or the Statement expires.
An employer should not force changes to the worker’s work without their agreement. A proper medical report or consulting an occupational health specialist might be required depending on the circumstances. If the employer can offer the options suggested by the doctor the employer is potentially in a stronger position to initiate a dismissal process if the worker is unwilling to accept them.
If the worker returns to work, even with changes or reduced hours, s/he will not normally be entitled to SSP, but an employer should seek legal advice as each case will depend on the nature of the return to work. Where a worker returns on reduced hours, it will be up to the employer to decide whether or not the worker is only paid for those hours, or whether the pay is made up to the level of SSP (if higher), company sick pay or full pay.
Essentially a contract for services can be terminated at any time and for any reason without notice or liability. If an Agency Worker does not turn up for work and fails to notify the Hirer or you of their absence, for whatever reason, the assignment will have been terminated at the end of the Agency Worker’s last day of work/shift.
However, you need to exercise caution where a temporary worker does not turn up for work due to illness or pregnancy. If the Agency Worker notifies you of their absence due to illness or pregnancy the Assignment does not terminate automatically. You cannot terminate an Assignment to avoid paying SSP or SMP so you must first ascertain the reason for the worker’s absence and then find out if the Hirer is willing to keep the assignment open for the worker.
If either the Agency Worker indicates that they will not be returning to work in that Assignment or the Hirer indicates they no longer wish to keep the Assignment open for that Agency Worker then you may terminate the Assignment. Otherwise you must continue to pay SSP or SMP until the Agency Worker returns to the Assignment or until the Assignment would have come to an end.
For further information please refer to the REC Legal Guide.
(Term and termination)
Complete the period in clause 9.5.
The period chosen should be reasonable in the circumstances, taking into account any time limit imposed for completion of the services and the urgency of the works. The time period should be consistent with the Client terms.
You cannot require the Agency Worker to consent to the processing of their personal data as a condition of providing work finding services and so we have deleted the previous consent provision which appeared here. However, we have included an acknowledgement from the Agency Worker that you must process their personal data.
See also clause 4.5.
16 (Governing Law)
Delete as appropriate to your main jurisdiction.
The Conduct Regulations require that you agree your Terms with the Agency Worker before you provide them with work-finding services. This does not mean that these Terms have to be signed by them but a signature is evidence of the fact that the Agency Worker has received and agreed them. The REC recommends obtaining the Agency Worker’s signature at registration.
Regulation 8 of the AWR provides that an Agency Worker who completes the Qualifying Period will be entitled to equal treatment in respect of pay and working conditions. Regulation 7 provides that an Agency Worker will complete the Qualifying Period when s/he completes 12 Calendar Weeks (see the definition of “Calendar Week” in clause 1) on assignment in the same role with the same hirer.
Regulation 7 also provides for the Agency Worker to take some breaks during an Assignment. The general rule is that breaks of 6 weeks or less will only pause the qualifying clock. In certain specified circumstances, breaks of more than 6 weeks will pause but not stop the clock.
There are also certain provisions regarding a break in an assignment during the Protected Period for a pregnant agency worker whose clock continues to run even though not working during the assignment.
All these provisions are set out in the Schedule.
Rights for pregnant agency workers
This note does not refer to any specific provision but is included for the sake of completeness.
Please refer to REC AWR Factsheet 6 and the Guidance for information on the rights under the AWR of pregnant agency workers and those who are new mothers or who are breastfeeding after they have completed the 12-week qualifying period. These rights include paid time off to attend ante-natal medical appointments and ante-natal classes; the right to be offered suitable alternative work (paid at the same rate as the original assignment) by you if the hirer cannot make reasonable adjustments and the agency worker cannot complete the original assignment for health and safety reasons; and the right to be paid by you for the remaining duration of the original assignment if you cannot find suitable alternative work.
Note the potential financial impact on your business if such an agency worker cannot complete an assignment for health and safety reasons and you cannot find suitable alternative work for the agency worker. The REC considered including a clause in Contract 3 between you and the hirer under which the hirer has to pay you for the remaining duration of the original assignment in these circumstances (so that you can pay the agency worker), but concluded that hirers are unlikely to agree to such a clause. However, the REC recommends that you consider trying to negotiate this kind of clause into the contract between you and the hirer.
Please be aware of, and do not accept, any potentially discriminatory instructions from hirers re the supply of female workers or pregnant agency workers. Such instructions could leave you open to sex discrimination claims under existing anti-discrimination legislation.
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