TERMS OF BUSINESS FOR THE INTRODUCTION OF CANDIDATES
1. DEFINITIONS & INTERPRETATION
1.1. In these Terms of Business (Terms) the following definitions apply:
- 1.1.1. Cancellation Fee means the fee payable by the Client to MTSS in accordance with clause 5 if the Client withdraws an offer of Engagement;
- 1.1.2. Candidate means a person, including any incorporated entity of which such person is an officer, partner, consultant, representative or employee, who is Introduced by MTSS to the Client;
- 1.1.3. Client means the business to which the Candidate is Introduced by MTSS;
- 1.1.4. Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
- 1.1.5. Data means personal data and special/sensitive personal data within the meaning of the Data Protection Legislation;
- 1.1.6. Data Protection Legislation means (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018;
- 1.1.7. Engagement means the engagement, employment or use of the Candidate by the Client on any basis whatsoever and whether directly or indirectly;
- 1.1.8. Introduction means (i) the provision by MTSS to the Client of a CV or other information which expressly or impliedly identifies a Candidate; (ii) the arrangement of an interview or meeting between the Client and a Candidate whether face to face, by telephone or by web/video conference a Candidate; “Introduce,” “Introduces” and “Introduced” shall be interpreted accordingly;
- 1.1.9. Introduction Fee means the fee payable by the Client to MTSS;
- 1.1.10. Introduction Period means the six month period from the most recent Introduction or Third Party Introduction of a Candidate;
- 1.1.11. MTSS means Michael Taylor Search & Selection Limited (Registered in England & Wales No. 09798491) whose registered office is at Challoner House, 2nd Floor, 19 Clerkenwell Close, London, EC1R 0RR;
- 1.1.12. Payment Terms means 14 days from the date of MTSS’ invoice;
- 1.1.13. Recruitment Services means the Introduction of Candidates to the Client by MTSS;
- 1.1.14. Refund Period means the 12 week period from commencement of a Candidate’s engagement;
- 1.1.15. Remuneration means (i) the gross annualised remuneration package payable to the Candidate by the Client including, without limitation, basic salary, guaranteed and estimated bonuses and commission, allowances and all other taxable and non-taxable emoluments. £5,000 shall be added in respect of any company vehicle provided to the Candidate or (ii) if the Candidate is Engaged on a self-employed basis or via a personal services company or any other corporate entity, the total estimated annual charges payable to the Candidate by the Client;
- 1.1.16. Third Party Engagement means the engagement of a Candidate by a party other than the Client following a Third Party Introduction; and
- 1.1.17. Third Party Introduction means the disclosure of a Candidate’s details to a third party by the Client, including disclosure to any holding, subsidiary or associated company of the Client.
1.2. Unless the context requires otherwise, references to the singular include the plural.
1.3. A person includes a natural person, firm, corporate or unincorporated body (whether or not having a separate legal personality).
1.4. Any phrase introduced by the words including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those words.
1.5. A reference to a statute or statutory provision is reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.6. The headings in these Terms are for convenience only and do not affect their interpretation.
2. BASIS OF CONTRACT
2.1. These Terms shall form the contract between MTSS and the Client for the Introduction of Candidates and shall be deemed to be accepted upon the Client instructing MTSS to Introduce a Candidate, the Client Engaging a Candidate or the Client otherwise acting upon an Introduction.
2.2. These Terms contain the entire agreement between the parties and prevail over any terms or conditions of purchase proposed or issued by the Client unless otherwise agreed in writing.
2.3. The Client warrants that it has not relied on any statement, promise or representation made or given by or on behalf of MTSS which is not set out in these Terms.
2.4. No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director of MTSS and the Client, are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.
2.5. For the purposes of the Conduct Regulations, MTSS shall act as an Employment Agency when providing Recruitment Services under these Terms.
3. INTRODUCTIONS
3.1. MTSS shall provide Recruitment Services to the Client and use reasonable endeavours to Introduce Candidates from time to time who:
- 3.1.1. meet the criteria specified by the Client pursuant to clause 9.1, where applicable; or
- 3.1.2. MTSS believes may otherwise be of interest or relevance to the Client.
3.2. An Introduction by MTSS shall be deemed to be the sole and effective cause of any Engagement of the Candidate within the Introduction Period unless all of the following conditions apply:
- 3.2.1. The Client had already been actively in contact with the relevant Candidate in relation to the specific job role in the prior six month period;
- 3.2.2. The Client provides reasonable evidence of such active contact to MTSS within five working days of MTSS’ initial Introduction of the Candidate; and
- 3.2.3. The Client has not arranged to interview the Candidate through MTSS or asked MTSS to facilitate the Engagement of the Candidate in any way.
3.3. The Client shall:
- 3.3.1. Notify MTSS immediately of any offer of an Engagement which it makes to a Candidate and the relevant terms of such offer;
- 3.3.2. Notify MTSS immediately upon the acceptance of an offer of Engagement by a Candidate;
- 3.3.3. Provide details to MTSS of the Remuneration agreed with the Candidate together with any documentary evidence as reasonably required by MTSS.
4. INTRODUCTION FEES
4.1. The Client will pay an Introduction Fee to MTSS in respect of each Introduction by MTSS which results in an accepted offer of Engagement within the Introduction Period.
4.2. MTSS shall issue an invoice for the Introduction Fee on the first day of the Engagement or as soon as reasonably practicable thereafter. VAT shall be charged on all sums invoiced under these Terms.
4.3. The Client shall settle MTSS’ invoice within the Payment Terms and time for payment shall be of the essence.
4.4. If the Client does not pay MTSS’ invoice within the Payment Terms, MTSS may:
- 4.4.1. Pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, charge late payment compensation;
- 4.4.2. Charge interest on such invoice at the rate of 8% per annum above the base rate of the Bank of England from the due date until the date of payment;
- 4.4.3. Where relevant, submit a further invoice to the Client pursuant to clause 4.9; and
- 4.4.4. Refer the collection of such payment to a collection agency or legal representatives and, if so referred, the Client shall be liable for all costs, fees (including legal fees on an indemnity basis), charges and disbursements incurred by MTSS in recovering payment from the Client.
4.5. Subject to clauses 4.6 and 4.7, the Introduction Fee payable to MTSS by the Client for an Introduction resulting in an Engagement shall be an amount equivalent to a percentage of the Remuneration payable to the Candidate in the first calendar year of the Engagement, rounded to the nearest pound, and calculated in accordance with the following Fee Structure:
Remuneration Introduction Fee
Below £45,000 15%
£45,000 and above 17.5%
4.6. The minimum Introduction Fee for an Engagement shall be £2,000.
4.7. Subject to clause 4.6, the Introduction Fee shall be charged on a pro-rata basis for a fixed term Engagement of less than 12 months (Fixed Term Contract). i.e. 1/12 of the full Introduction Fee for each complete or partial month in which the Candidate is Engaged under a Fixed Term Contract
4.8. If a Fixed Term Contract is extended, or if the Client Engages the Candidate within 6 months from termination or expiry of the Fixed Term Contract, the Client shall pay the balance of the full Introduction Fee to MTSS.
4.9. Any discount or reduction in the Introduction Fee which is agreed between the parties is contingent upon (i) the Client complying with clause 3.3 in all respects and (ii) the Client paying MTSS’ invoice for the Introduction Fee within the Payment Terms.
4.10. If the amount of actual Remuneration is not known or the Client fails to provide details of such Remuneration to MTSS, MTSS will charge an Introduction Fee based on the level of Remuneration which, in MTSS’s reasonable opinion, is the market rate for the Engagement.
4.11. All Introduction Fees shall be charged to the Client in Pounds Sterling (GBP). Where a Candidate’s Remuneration is not provided in GBP, MTSS shall convert the Remuneration to GBP using the exchange rate published by the Bank of England on the date of invoice. The Client shall bear all banking and currency exchange charges when paying MTSS’s invoice.
5. REFUND GUARANTEE
5.1. If the Engagement terminates in the Refund Period, the Introduction Fee or part will be refunded to the Client in accordance with the scale set out in clause 5.2 (Refund), provided that:
- 5.1.1. The Client paid the Introduction Fee within the Payment Terms;
- 5.1.2. The Client notified MTSS in writing within 7 days of the termination of the Engagement, giving the reasons for such termination;
- 5.1.3. The Candidate has not been made redundant or dismissed because the Candidate is no longer required;
- 5.1.4. The Engagement is not a Third Party Engagement;
- 5.1.5. The Client is not in breach of these Terms or any other contract entered into with MTSS; and
- 5.1.6. The Candidate was not previously supplied to the Client by MTSS as a Temporary Worker for a period of more than one month.
5.2. Subject to clause 5.1, MTSS shall within 30 days give a Refund to the Client in accordance with the following scale:
Week Candidate Leaves Refund
1-3 100%
4-6 75%
7-9 50%
10-12 25%
12+ 0%
5.3. For the purposes of this clause 5, the date of termination of the Engagement shall be the date on which the Candidate ceases working or would have ceased working for the Client in the absence of any period of garden leave or pay in lieu of notice, whichever is later.
5.4. If the Client Engages the Candidate again within 6 months of termination of the Engagement, an Introduction Fee shall become payable and upon this further Engagement, there shall be no entitlement to a Refund should the Candidate’s Engagement then terminate.
6. CANCELLATION FEE
If the Client decides to withdraw an offer of Engagement because the Candidate is no longer required, the Client shall pay to MTSS a Cancellation Fee of 25% of the Introduction Fee, which shall be invoiced in accordance with clause 4.
7. NON-SOLICITATION
If the Client makes an offer of engagement to any MTSS employee with whom the Client has had material dealings and such offer is accepted by the employee within three months of the employee leaving MTSS’ employment, the Client shall pay an Introduction Fee to MTSS which shall be calculated in accordance with clause 4.5. The Client shall not be entitled to a Refund if such engagement terminates for any reason.
8. THIRD PARTY INTRODUCTIONS
If a Third Party Introduction results in a Third Party Engagement within the Introduction Period, the Client shall pay an Introduction Fee which shall be calculated in accordance with clause 4.5. The Client shall not be entitled to a Refund if the Third Party Engagement terminates for any reason.
9. RESPONSIBILITY FOR VETTING CHECKS
9.1. The Client shall provide to MTSS all such information as MTSS shall reasonably require regarding the position which the Client is seeking to fill including, without limitation, the information specified in Regulation 18 of the Conduct Regulations.
9.2. The Company shall:
- 9.2.1. take all reasonably practicable steps to ensure that the Candidate and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Candidate to enable the Candidate to work for the Client in the position which the Client seeks to fill;
- 9.2.2. make all such reasonably practicable enquiries to ensure that it would not be detrimental to the interests of the Candidate or the Client for the Candidate to work for the Client in the position which the Client seeks to fill;
- 9.2.3. where the relevant position involves working with, caring for or attending a vulnerable person, take all reasonably practicable steps to:
- 9.2.3.1. obtain copies of any relevant qualifications or authorisations of the Candidate and offer to provide copies of those documents to the Client;
- 9.2.3.2. obtain two references from persons who are not relatives of the Candidate and who have agreed that the reference provided may be disclosed to the Client; and
- 9.2.3.3. confirm that the Candidate is suitable for the position concerned.
9.3. Notwithstanding clause 9.1, the Client acknowledges that the Client is exclusively responsible for determining whether to Engage a Candidate and the Client must therefore make such enquiries and carry out such checks as the Client considers necessary to ensure that the Candidate is suitable for the position which the Client is seeking to fill including, without limitation:
- 9.3.1. Taking up any references provided by the Candidate before Engaging the Candidate;
- 9.3.2. Checking the Candidate’s right to work and obtaining permission to work as may be required by the law of the country in which the Candidate is Engaged to work;
- 9.3.3. Arranging any medical examinations and/or investigations into the medical history of any Candidate; and
- 9.3.4. Checking any other requirements, qualifications or permission required for the Candidate to be Engaged by the Client.
10. CONFIDENTIALITY & DATA PROTECTION
10.1. The Client shall treat all information relating to a Candidate which is provided during the recruitment process as confidential and:
- 10.1.1. Must not use such information for any other purpose without the prior consent of MTSS and the Candidate; and
- 10.1.2. Must ensure that its employees, representatives and agents are all bound by written confidentiality obligations in respect of such information.
10.2. The Client acknowledges that, unless otherwise agreed between the parties in writing, MTSS and the Client shall each act as data controllers in respect of any Data relating to a Candidate and the Client must:
- 10.2.1. Control and process such Data in accordance with the Data Protection Legislation;
- 10.2.2. Provide to the Candidate the information specified under Article 14 of the GDPR and, if requested by the Client, MTSS shall use reasonable endeavours to assist the Client in this regard; and
- 10.2.3. Notify MTSS without delay if any Data relating to a Candidate which has been supplied by MTSS is subject to a Data breach at any time prior to such Candidate becoming Engaged by the Client.
10.3. The Client must not apply for a reference from the Candidate’s current employer prior to the Candidate formally accepting an offer of Engagement.
11. TERMINATION
11.1. Either party may terminate the provision of Recruitment Services by MTSS at any time by notifying the other party in writing.
11.2. Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by MTSS prior to such termination.
12. LIABILITY
12.1. Whilst MTSS will use reasonable endeavours to ensure that any Candidate Introduced to the Client meets the requirements specified by the Client pursuant to clause 9.1, MTSS gives no warranty, whether express or implied, as to the ability, integrity or character of the Candidate.
12.2. MTSS shall not be liable to the Client for any indirect or consequential losses or for any loss of profit, loss of business or loss of goodwill howsoever arising.
12.3. Subject to clause 12.4, the aggregate liability of MTSS to the Client in respect of any claim arising out of or in connection with the performance or non-performance of these Terms and whether in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to the Introduction Fee paid by the Client to MTSS in respect of the Engagement in relation to which such claim arises or, if there was no Engagement, the sum of £2,000.
12.4. For the avoidance of doubt, MTSS does not limit or exclude liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation or for any other claim which may not be limited or excluded by law.
12.5. Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.
12.6. Any claim which the Client may bring against MTSS pursuant to these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.
12.7. The Client shall indemnify MTSS against all losses, damages or claims suffered or incurred by MTSS as a result of any breach of contract, negligence (or any other tortious act), breach of statutory duty or otherwise.
13. BRIBERY & ANTI-CORRUPTION
13.1. The Client and MTSS each warrant that they shall:
- 13.1.1. Comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; and
- 13.1.2. Promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with the performance of these Terms.
14. GENERAL PROVISIONS
14.1. The Client shall not assign any of its rights or obligations under these Terms without the written consent of MTSS.
14.2. The Client shall not deduct or set off against any sum due to MTSS under these Terms, any sum which is owed or which the Client alleges or claims is owed by MTSS to the Client, whether under these Terms or under any other agreement between MTSS and the Client.
14.3. 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 Terms, which shall continue to be valid to the fullest extent permitted by law.
14.4. No failure or delay by a party in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.5. MTSS and the Client do not intend these Terms to be enforceable by any third party.
14.6. These Terms shall be interpreted in accordance with English law.
14.7. The parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising between the parties in relation to the construction, interpretation or performance of the Terms.
1.1. In these Terms of Business (Terms), the following definitions apply:
- 1.1.1. Agency Worker means an agency worker within the meaning of the AWR who may be (i) engaged directly by MTSS under a contract for services or (ii) employed by an Intermediary under a contract of service;
- 1.1.2. Assessment means a written assessment, in a format acceptable to MTSS, as to whether the Assignment falls within the scope of section 61M of ITEPA;
- 1.1.3. Assignment means the temporary role which the Temporary Worker shall undertake for the Client;
- 1.1.4. Assignment Schedule means the document confirming details of the Assignment which is issued to the Client by MTSS;
- 1.1.5. AWR means the Agency Workers Regulations 2010;
- 1.1.6. Charges means the charges made by MTSS for the supply of the Temporary Worker including the Temporary Worker’s hourly or daily rate, MTSS’ commission and, in respect of a Temporary Worker who is an Agency Worker, any Employer’s National Insurance contributions, pension contributions, holiday pay and additional monies due pursuant to the AWR;
- 1.1.7. Client means the business to which the Temporary Worker is Introduced by MTSS including, where the Client is a corporate entity, any holding, subsidiary or associated company;
- 1.1.8. Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended);
- 1.1.9. Consultancy means a limited company or limited liability partnership supplied by MTSS to perform the Services;
1.1.10. Consultancy Data means personal data and special/sensitive personal data within the meaning of the Data Protection Legislation;
- 1.1.11. Data Protection Legislation means (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018;
- 1.1.12. Engagement means the engagement, employment or use of the Candidate by the Client on any basis whatsoever directly or through any party other than MTSS. Engage, Engages and Engaged shall be interpreted accordingly;
- 1.1.13. Intermediary means a third-party company which is engaged by MTSS to provide an Agency Worker or Subcontractor;
- 1.1.14. Intermediaries Legislation means Chapter 10 of Part 2 of ITEPA;
- 1.1.15. Introduction means (i) the provision by MTSS to the Client of a CV or other information which expressly or impliedly identifies a Temporary Worker; (ii) the arrangement of an interview or meeting between the Client and a Temporary whether face to face, by telephone or by web/video conference a Candidate; or (iii) the supply of a Temporary Worker; and “Introduces” and “Introduced” shall be interpreted accordingly;
- 1.1.16. ITEPA means the Income Tax (Earnings and Pensions) Act 2003;
- 1.1.17. MTSS means Michael Taylor Search & Selection Limited (Registered in England & Wales No. 09798491) whose registered office is at Challoner House, 2nd Floor, 19 Clerkenwell Close, London, EC1R 0RR;
- 1.1.18. Payment Terms means 30 days from the date of MTSS’ invoice;
- 1.1.19. Period of Extended Hire means an extension of the Assignment for 16 weeks;
- 1.1.20. Recruitment Services means the Introduction and supply of Temporary Workers to the Client by MTSS;
- 1.1.21. Relevant Period means the later of (i) the period of 8 weeks commencing on the day after the Temporary Worker last worked for the Client during an Assignment or (ii) the period of 14 weeks commencing on the first day on which the Temporary Worker worked for the Client during an Assignment but, in determining the first day on which the Temporary Worker worked for the Client, a prior Assignment shall be disregarded where more than 42 days have passed between Assignments;
- 1.1.22. Restricted Period means the later of (i) six months from the end of the Assignment or (ii) six months from the most recent Introduction of the Temporary Worker to the Client;
- 1.1.23. Remuneration includes gross basic salary or fees, anticipated bonus and commission earnings, allowances, inducement payments, the benefit of a company car and all other payments and taxable (and, where applicable, non-taxable) emoluments payable to or receivable by the Temporary Worker for services provided to or on behalf of the Client or any third party. Where a company car is provided, a notional amount of £5,000 will be added to the salary in order to calculate MTSS’ fee;
- 1.1.24. Representative means the director, officer or employee of a Consultancy who performs the Services on behalf of the Consultancy;
- 1.1.25. SDC means supervision, direction or control as to the manner in which the Services are carried out;
- 1.1.26. Services means the work to be carried out by the Temporary Worker during the course of the Assignment as described in the Assignment Schedule;
- 1.1.27. Subcontractor means a self-employed subcontractor of the Temporary Worker;
- 1.1.28. Temporary Worker means the person, firm or corporate body (including an umbrella company) Introduced or supplied to the Client by MTSS and, save where otherwise indicated, includes a Consultancy, Representative, Subcontractor and Agency Worker; and
- 1.1.29. Transfer Fee means the fee payable pursuant to clause 8.1 below in accordance with Regulation 10 of the Conduct Regulations.
1.2. Unless the context requires otherwise, references to the singular include the plural.
1.3. A person includes a natural person, firm, corporate or unincorporated body (whether or not having a separate legal personality).
1.4. Any phrase introduced by the words including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those words.
1.5. A reference to a statute or statutory provision is reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.6. The headings in these Terms are for convenience only and do not affect their interpretation.
2. BASIS OF CONTRACT
2.1. These Terms, incorporating the Assignment Schedule, comprise the entire agreement between MTSS and the Client for the supply of a Temporary Worker to the Client and shall prevail over any alternative terms which are proposed by the Client.
2.2. These Terms shall be deemed to have been accepted by the Client upon signing them or otherwise expressly indicating their acceptance in writing, instructing MTSS to supply a Temporary Worker or Engaging the Temporary Worker, whichever occurs first.
2.3. The Client shall not rely on any statement, promise or representation made or given by or on behalf of MTSS which is not set out in these Terms.
2.4. No variation or alteration to these Terms shall be valid unless the details of such a variation are agreed between a director of MTSS and the Client, are set out in writing and a copy of the varied Terms is given to the Client stating the date on or after which such varied Terms shall apply.
2.5. For the purposes of the Conduct Regulations, MTSS shall be acting as an employment business when introducing or supplying a Temporary Workers for an Assignment with the Client.
2.6. Unless MTSS notifies the Client that a Temporary Worker has opted-out of the Conduct Regulations, the Conduct Regulations shall be deemed to apply to any Assignment carried out by a Temporary Worker.
3. INTRODUCTIONS
3.1. MTSS shall provide Recruitment Services to the Client and use reasonable endeavours to Introduce Temporary Workers from time to time who:
- 3.1.1. Meet the criteria specified by the Client pursuant to clause 4.1, where applicable; or
- 3.1.2. MTSS believes may otherwise be of interest or relevance to the Client.
4. CLIENT OBLIGATIONS
4.1. Where the Conduct Regulations apply to an Assignment, the Client shall provide to MTSS all such information regarding the Assignment which is specified in Regulation 18 of the Conduct Regulations.
4.2. The Client will comply and will assist MTSS with complying with its obligations under the AWR by, without limitation:
- 4.2.1. Providing the Agency Worker with access to collective facilities and amenities and information about permanent employment opportunities with the Client;
- 4.2.2. Providing information to MTSS about any previous assignment for which the Agency Worker has been supplied by any other employment business;
- 4.2.3. Where relevant, providing written details of the relevant terms and conditions which apply to any actual or hypothetical comparator to the Agency Worker together with any amendments to such terms and conditions where appropriate;
- 4.2.4. Co-operating with MTSS in responding to or assisting MTSS with responding to any question or complaint made under the AWR in a timely manner;
- 4.2.5. Permitting a pregnant Agency Worker to attend ante-natal appointments, with pay, during working time after the 12-week qualifying period;
- 4.2.6. Carrying out a risk assessment in respect of any pregnant Agency Worker and making such adjustments to the Assignment as are necessary to protect the Agency Worker’s health and wellbeing or, where necessary, identifying a suitable alternative Assignment within the Client’s organisation for the Agency Worker to perform; and
- 4.2.7. After the 12 week qualifying period under the AWR, paying a proportional increase in the hourly charges for the Agency Worker where necessary, together with any other emoluments to which the Agency Worker is entitled.
4.3. The Client warrants that s44(2)(a) of Income Tax (Earnings and Pensions) Act 2003 (ITEPA) shall apply to any Assignment carried out by a Subcontractor and the Client must notify MTSS without delay it believes that s44(2)(a) ITEPA 2003 is not or is no longer applicable to an Assignment.
4.4. Subject to clause 4.8, the Client acknowledges that a Consultancy may appoint an alternative Representative to perform the Services from time to time and, subject to verifying that the alternative Representative is equally skilled, qualified, security cleared and able to perform the Services, the Client shall accept the appointment of such alternative Representative.
4.5. Subject to clause 4.8, the Client shall not move any Consultancy or Subcontractor to a different task or project or otherwise materially vary the Assignment without first agreeing such move or variation with MTSS.
4.6. Subject to clause 4.8, the Client acknowledges that a Consultancy or Subcontractor shall determine their own schedule when performing the Services and the location in which such Services are performed, subject to the Client’s reasonable operational requirements and the specific nature of the Assignment.
4.7. Subject to clause 4.8, the Client shall not exercise or permit any third party to exercise SDC (or assert the right thereof) over any Consultancy or Subcontractor during an Assignment. Nothing in this clause shall affect the Client’s obligations under clause 4.9.
4.8. Clauses 4.4 - 4.7 shall not apply where the parties have agreed that the Assignment (ii) falls within the scope of section 61M of ITEPA or (ii) otherwise falls within the Intermediaries Legislation.
4.9. The Client must:
- 4.9.1. Provide a safe working environment for the Temporary Worker;
- 4.9.2. Ensure that, where applicable, the Temporary Worker uses all necessary safety and personal protective equipment during the Assignment;
- 4.9.3. Comply with all statutory provisions, by-laws, codes of practice and other legal obligations in respect of the Temporary Worker’s health and safety whilst carrying out an Assignment; and
- 4.9.4. Maintain records of any accident or injury affecting the Temporary Worker and provide copies of such records to MTSS upon demand; and
- 4.9.5. Ensure that the Temporary Worker is insured under the Client’s insurance policies for the duration of the Assignment.
4.10. The Client must not request the supply of a Temporary Worker to perform the duties normally performed by a worker who is taking part in official industrial action or duties normally performed by a worker who has been transferred by the Client to perform the duties of a person on strike or taking official industrial action.
4.11. The Client must notify MTSS forthwith if it is aware of any reason why it would be detrimental to the interests of the Temporary Worker to carry out the Assignment.
4.12. The Client must notify MTSS immediately if it intends to Engage a Temporary Worker, extend an Assignment or otherwise vary the Assignment in any way.
5. PROVISION OF INFORMATION
5.1. The Client must inform MTSS of:
- 5.1.1. The information relating to an Assignment specified in Regulation 18 of the Conduct Regulations;
- 5.1.2. Whether the Temporary Worker requires a DBS disclosure or any other check or clearance to carry out the Assignment;
- 5.1.3. Any Health and Safety information which is relevant to the Assignment;
- 5.1.4. Such Information as MTSS may require to comply with the Working Time Regulations (WTR) and the Client shall do nothing to cause MTSS to breach the WTR;
and
- 5.1.5. Any reason why it may be detrimental to the interests of the Temporary Worker to carry out the Assignment.
5.2. If requested by MTSS, the Client shall provide all such information as MTSS shall require to determine whether or not a Temporary Worker shall be subject to SDC during an Assignment. The Client acknowledges that MTSS shall rely upon any such information which is provided and the Client warrants that such information shall be accurate.
5.3. If the Client is a Public Authority or the Assignment otherwise falls within the scope of Chapter 10 of Part 2 of ITEPA, the Client must:
- 5.3.1. Notify MTSS of this information without delay;
- 5.3.2. Provide an Assessment to MTSS prior to commencement of the Assignment where requested by MTSS;
- 5.3.3. Ensure that any Assessment provided to MTSS is accurate; and
- 5.3.4. Provide all such information as MTSS may reasonably require, without delay, to justify or support the Assessment.
5.4. The Client shall indemnify and keep indemnified MTSS against any liability for PAYE income tax or National Insurance contributions (including any penalties) suffered or incurred by MTSS in relation to any Temporary Worker where the Client (i) provides an inaccurate Assessment (ii) fails to provide an Assessment or (iii) fails to comply with clause 4.7.
5.5. The Company shall issue an Assignment Schedule to the Client on commencement of the Assignment or otherwise within three business days of its commencement.
6. TEMPORARY WORKER CHECKS
6.1. The Company shall:
- 6.1.1. Take all reasonably practicable steps to ensure that the Temporary Worker and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Temporary Worker to enable the Temporary Worker to perform the Assignment;
6.1.2. Make all such reasonably practicable enquiries to ensure that it would not be detrimental to the interests of the Temporary Worker or the Client for the Temporary Worker to perform the Assignment for the Client;
6.1.3. Where Client has informed MTSS that the Assignment involves working with, caring for or attending a vulnerable person, take all reasonably practicable steps to:
- 6.1.3.1. Obtain copies of any relevant qualifications or authorisations of the Temporary Worker and offer to provide copies of those documents to the Client;
- 6.1.3.2. Obtain two references from persons who are not relatives of the Temporary Worker and who have agreed that the reference provided may be disclosed to the Client; and
- 6.1.3.3. Confirm that the Temporary Worker is suitable for the position concerned.
7. TIMESHEETS
7.1. At the end of each week of an Assignment (or at the end of the Assignment where it is for a period of one week or less), the Client shall sign a timesheet in a format specified by MTSS verifying the number of hours worked by the Temporary Worker during that week.
7.2. The Client is responsible for ensuring that the hours shown on the Temporary Worker’s timesheet are correct and that only duly authorised employees sign the timesheet.
7.3. Signature of the timesheet by the Client is confirmation of the number of hours worked. If the Client is unable to sign a timesheet produced for authentication by the Temporary Worker because the Client disputes the hours claimed, the Client shall inform MTSS as soon as is reasonably practicable and shall co-operate fully and in a timely manner with MTSS to enable MTSS to establish what hours, if any, were worked by the Temporary Worker.
7.4. Failure to sign the timesheet does not absolve the Client’s obligation to pay the charges in respect of the hours worked.
7.5. The Client acknowledges that MTSS shall rely upon the Client’s confirmation of the number of hours worked by the Temporary Worker and the Client must not retrospectively adjust the number of hours duly confirmed as having been worked by the Temporary Worker.
7.6. The Client shall not be entitled to decline to sign a timesheet on the basis that the Client is dissatisfied with the Services but may be entitled to terminate the Assignment in accordance with clause 11 below.
8. CHARGES
8.1. The Client shall pay the Charges as agreed between the Client and MTSS and confirmed in the Assignment Schedule.
8.2. MTSS shall issue an invoice to the Client for the Charges each week and such invoice shall be payable within the Payment Terms. VAT shall be charged at the standard rate on the Charges.
8.3. MTSS may vary the Charges, by giving written notice to the Client, in order to comply with any additional or amended statutory liability.
8.4. There are no refunds or rebates payable in respect of the Charges and the Client shall pay the Charges without deduction or set off including, without limitation, any deduction in respect of the CITB levy.
8.5. If an invoice is not paid within the Payment Terms, MTSS may:
- 8.5.1. Terminate the supply of Temporary Workers to the Client without notice;
- 8.5.2. Pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, charge late payment compensation in respect of such invoice;
- 8.5.3. Charge interest at the rate of 8% per annum above the base rate of the Bank of England from the due date until the date of payment; and
- 8.5.4. Refer the collection of such payment to its legal representatives and, in such circumstances, the Client shall be liable for all costs, fees (including legal fees on an indemnity basis), charges and disbursements incurred by MTSS in recovering payment from the Client.
9. RESPONSIBILITY FOR PAYMENTS
MTSS is responsible for making payments to the Temporary Worker and, in respect of an Agency Worker, shall ensure that PAYE Income Tax and National Insurance Contributions are deducted from such payments pursuant to sections 44-47 of ITEPA 2003.
10. TRANSFER FEES
10.1. Subject to clause 10.5, the Client shall pay a Transfer Fee (“Transfer Fee”) if the Client Engages a Temporary Worker Introduced by MTSS or introduces the Temporary Worker to a third party and such introduction results in an engagement of the Temporary Worker by the third party and:
- 10.1.1. Where the Temporary Worker has commenced an Assignment and has not opted out of the Conduct Regulations, such Engagement takes place within the Relevant Period; or
- 10.1.2. Where the Temporary Worker has commenced an Assignment and has opted out of the Conduct Regulations or where the Temporary Worker has not commenced an Assignment, such Engagement takes place within the Restricted Period.
10.2. The Transfer Fee shall be calculated as a percentage of the annualised Remuneration payable to the Temporary Worker for the Engagement in accordance with the following Transfer Fee Structure:
Remuneration Introduction Fee
Below £45,000 15%
£45,000 and above 17.5%
10.3. If the actual Remuneration is not disclosed to MTSS, the Transfer Fee shall be the hourly Charge at which the Temporary Worker was (or would have been) supplied to the Client multiplied by 350.
10.4. No refund of the Transfer Fee will be due if the Engagement subsequently terminates.
10.5. Unless the Temporary Worker has opted out of the Conduct Regulations, the Client may, instead of paying the Transfer Fee, on giving one week’s written notice to MTSS, request that the Temporary Worker provides the Services for the Period of Extended Hire.
10.6. During a Period of Extended Hire, MTSS shall supply the Temporary Worker on the same terms as which they were supplied during the Assignment and, in any case, on terms no less favourable than those terms which applied immediately before MTSS received the notice pursuant to clause 10.5.
10.7. If MTSS is unable to supply the Temporary Worker for any reason outside its control for the whole or any part of the Period of Extended Hire or the Client does not wish to hire the Temporary Worker on the same terms as the Assignment but the Temporary Worker is Engaged by the Client, the Client shall pay the Transfer Fee as set out in clause 10.2 above.
11. TERMINATION
11.1. Subject to clauses 11.2, 11.3 and 11.4, either party may terminate an Assignment at any time by giving the notice specified in the Assignment Schedule or, if no period of notice is specified, at any time without notice.
11.2. Irrespective of any notice period specified in the Assignment Schedule, either party may terminate an Assignment without notice if the other party has committed a serious or persistent breach of its obligations under these Terms, if the other party undergoes a change of control or becomes insolvent.
11.3. MTSS may terminate an Assignment without notice if it becomes aware of any reason why the Temporary Worker is unsuitable to work in the Assignment.
11.4. If the Client, acting reasonably, is dissatisfied with the Services, the Client may on the first day terminate an Assignment within the first 4 hours if the booking was for more than 7 hours (or within the first 2 hours if the booking was for 7 hours or less) and, provided that such termination is confirmed by the Client in writing within 48 hours, the Employment Business shall cancel the Charges for such period.
11.5. Either party may terminate the provision of Recruitment Services by MTSS at any time by notifying the other party in writing.
11.6. Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by MTSS prior to such termination.
12. CONFIDENTIALITY AND DATA PROTECTION
12.1. The Client acknowledges that, unless otherwise agreed between the parties in writing, MTSS and the Client shall each act as data controllers in respect of any Data relating to a Temporary Worker and the Client must:
- 12.1.1. Control and process such Data in accordance with the Data Protection Legislation;
- 12.1.2. Provide to the Temporary Worker the information specified under Article 14 of the GDPR and, if requested by the Client, MTSS shall use reasonable endeavours to assist the Client in this regard; and
- 12.1.3. Notify MTSS without delay if any Data relating to a Temporary Worker which has been supplied by MTSS is subject to a Data breach at any time prior to such Temporary Worker completing an Assignment with the Client.
12.2. Save to the extent that MTSS is required to disclose such information to the Temporary Worker, MTSS shall keep confidential any information provided by the Client for the purpose of complying with the AWR and shall not use it for any other purpose.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. MTSS acknowledges that all copyright, trade marks, patents, design rights and other intellectual property rights deriving from the Assignment shall belong to the Client.
13.2. MTSS shall use reasonable endeavours to ensure that the Temporary Worker, at the Client’s expense, executes such documents and takes such action as is necessary to waive any moral rights in or transfer such intellectual property rights to the Client.
14. LIABILITY
14.1. Whilst MTSS shall use reasonable endeavours to Introduce Temporary Workers to the Client from time to time, MTSS shall not be liable if it does not Introduce a Temporary Worker.
14.2. The Client shall be responsible for the supervision, direction and control of an Agency Worker during their Assignment.
14.3. The Company shall not be liable for (i) the acts or omissions of any Temporary Worker (ii) any loss, theft or damage to any tools, equipment or other property issued to or used by the Temporary Worker during the Assignment or (iii) the performance or non-performance of the Services.
14.4. In the event of any error or defect in Services which are performed by a Consultancy or Subcontractor and notified to MTSS within a reasonable period, MTSS shall require the Consultancy or Subcontractor to remedy such error or defect in its own time and at its own expense. The Company shall not however be liable to the Client if the Consultancy or Subcontractor refuses or fails to remedy such error or defect.
14.5. MTSS shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty or otherwise for failing to supply a Temporary Worker, for terminating an Assignment, for any claim for loss of profit or business, or for any indirect or consequential loss arising out of or in connection with these Terms.
14.6. Subject to clause 14.7, the aggregate liability of MTSS to the Client in respect of any claim or series of claims arising out of or in connection with these Terms shall be limited to 15% of the Charges paid by the Client in relation to the relevant Temporary Worker in the three month period immediately prior to such claim arising or, if there was no supply of a Temporary Worker, the sum of £5,000.
14.7. MTSS does not limit or exclude liability for death or personal injury arising from its own negligence or for any other claim which may not be limited or excluded by law.
14.8. Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.
14.9. The Client shall indemnify and keep indemnified MTSS against all losses, damages or claims suffered or incurred by MTSS as a result of any breach of contract, negligence (or any other tortious act), breach of statutory duty or otherwise.
14.10. The Client shall indemnify and keep indemnified MTSS against any demand or assessment for PAYE income tax or National Insurance contributions (including any penalties) suffered or incurred by MTSS where the Client has failed to ensure that s44(2)(a) ITEPA 2003 applies to an Assignment carried out by a Consultancy.
15. BRIBERY & ANTI-CORRUPTION
15.1. The Client and MTSS each warrant that they shall:
- 15.1.1. Comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; and
- 15.1.2. Promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with the performance of these Terms.
16. GENERAL PROVISIONS
16.1. The Client shall not assign any of its rights or obligations without the written consent of MTSS.
16.2. The Client shall not deduct or set off against any sum due to MTSS, any sum which is owed or which the Client alleges or claims is owed by MTSS to the Client.
16.3. 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 Terms, which shall continue to be valid to the fullest extent permitted by law.
16.4. No failure or delay by a party in exercising any right or remedy under the Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16.5. The Terms shall be interpreted in accordance with English law.
16.6. The parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising between the parties in relation to the construction, interpretation or performance of the Terms.
1. DEFINITIONS & INTERPRETATION
1.1. In these Terms of Business (Terms) the following definitions apply:
- 1.1.1. Cancellation Fee means the fee payable by the Client to MTSS in accordance with clause 5 if the Client withdraws an offer of Engagement;
- 1.1.2. Candidate means a person, including any incorporated entity of which such person is an officer, partner, consultant, representative or employee, who is Introduced by MTSS to the Client;
- 1.1.3. Client means the business to which the Candidate is Introduced by MTSS;
- 1.1.4. Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
- 1.1.5. Data means personal data and special/sensitive personal data within the meaning of the Data Protection Legislation;
- 1.1.6. Data Protection Legislation means (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018;
- 1.1.7. Engagement means the engagement, employment or use of the Candidate by the Client on any basis whatsoever and whether directly or indirectly;
- 1.1.8. Introduction means (i) the provision by MTSS to the Client of a CV or other information which expressly or impliedly identifies a Candidate; (ii) the arrangement of an interview or meeting between the Client and a Candidate whether face to face, by telephone or by web/video conference a Candidate; “Introduce,” “Introduces” and “Introduced” shall be interpreted accordingly;
- 1.1.9. Introduction Fee means the fee payable by the Client to MTSS;
- 1.1.10. Introduction Period means the six month period from the most recent Introduction or Third Party Introduction of a Candidate;
- 1.1.11. MTSS means Michael Taylor Search & Selection Limited (Registered in England & Wales No. 09798491) whose registered office is at Challoner House, 2nd Floor, 19 Clerkenwell Close, London, EC1R 0RR;
- 1.1.12. Payment Terms means 14 days from the date of MTSS’ invoice;
- 1.1.13. Recruitment Services means the Introduction of Candidates to the Client by MTSS;
- 1.1.14. Refund Period means the 12 week period from commencement of a Candidate’s engagement;
- 1.1.15. Remuneration means (i) the gross annualised remuneration package payable to the Candidate by the Client including, without limitation, basic salary, guaranteed and estimated bonuses and commission, allowances and all other taxable and non-taxable emoluments. £5,000 shall be added in respect of any company vehicle provided to the Candidate or (ii) if the Candidate is Engaged on a self-employed basis or via a personal services company or any other corporate entity, the total estimated annual charges payable to the Candidate by the Client;
- 1.1.16. Third Party Engagement means the engagement of a Candidate by a party other than the Client following a Third Party Introduction; and
- 1.1.17. Third Party Introduction means the disclosure of a Candidate’s details to a third party by the Client, including disclosure to any holding, subsidiary or associated company of the Client.
1.2. Unless the context requires otherwise, references to the singular include the plural.
1.3. A person includes a natural person, firm, corporate or unincorporated body (whether or not having a separate legal personality).
1.4. Any phrase introduced by the words including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those words.
1.5. A reference to a statute or statutory provision is reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.6. The headings in these Terms are for convenience only and do not affect their interpretation.
2. BASIS OF CONTRACT
2.1. These Terms shall form the contract between MTSS and the Client for the Introduction of Candidates and shall be deemed to be accepted upon the Client instructing MTSS to Introduce a Candidate, the Client Engaging a Candidate or the Client otherwise acting upon an Introduction.
2.2. These Terms contain the entire agreement between the parties and prevail over any terms or conditions of purchase proposed or issued by the Client unless otherwise agreed in writing.
2.3. The Client warrants that it has not relied on any statement, promise or representation made or given by or on behalf of MTSS which is not set out in these Terms.
2.4. No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director of MTSS and the Client, are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.
2.5. For the purposes of the Conduct Regulations, MTSS shall act as an Employment Agency when providing Recruitment Services under these Terms.
3. INTRODUCTIONS
3.1. MTSS shall provide Recruitment Services to the Client and use reasonable endeavours to Introduce Candidates from time to time who:
- 3.1.1. meet the criteria specified by the Client pursuant to clause 9.1, where applicable; or
- 3.1.2. MTSS believes may otherwise be of interest or relevance to the Client.
3.2. An Introduction by MTSS shall be deemed to be the sole and effective cause of any Engagement of the Candidate within the Introduction Period unless all of the following conditions apply:
- 3.2.1. The Client had already been actively in contact with the relevant Candidate in relation to the specific job role in the prior six month period;
- 3.2.2. The Client provides reasonable evidence of such active contact to MTSS within five working days of MTSS’ initial Introduction of the Candidate; and
- 3.2.3. The Client has not arranged to interview the Candidate through MTSS or asked MTSS to facilitate the Engagement of the Candidate in any way.
3.3. The Client shall:
- 3.3.1. Notify MTSS immediately of any offer of an Engagement which it makes to a Candidate and the relevant terms of such offer;
- 3.3.2. Notify MTSS immediately upon the acceptance of an offer of Engagement by a Candidate;
- 3.3.3. Provide details to MTSS of the Remuneration agreed with the Candidate together with any documentary evidence as reasonably required by MTSS.
4. INTRODUCTION FEES
4.1. The Client will pay an Introduction Fee to MTSS in respect of each Introduction by MTSS which results in an accepted offer of Engagement within the Introduction Period.
4.2. MTSS shall issue an invoice for the Introduction Fee on the first day of the Engagement or as soon as reasonably practicable thereafter. VAT shall be charged on all sums invoiced under these Terms.
4.3. The Client shall settle MTSS’ invoice within the Payment Terms and time for payment shall be of the essence.
4.4. If the Client does not pay MTSS’ invoice within the Payment Terms, MTSS may:
- 4.4.1. Pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, charge late payment compensation;
- 4.4.2. Charge interest on such invoice at the rate of 8% per annum above the base rate of the Bank of England from the due date until the date of payment;
- 4.4.3. Where relevant, submit a further invoice to the Client pursuant to clause 4.9; and
- 4.4.4. Refer the collection of such payment to a collection agency or legal representatives and, if so referred, the Client shall be liable for all costs, fees (including legal fees on an indemnity basis), charges and disbursements incurred by MTSS in recovering payment from the Client.
4.5. Subject to clauses 4.6 and 4.7, the Introduction Fee payable to MTSS by the Client for an Introduction resulting in an Engagement shall be an amount equivalent to a percentage of the Remuneration payable to the Candidate in the first calendar year of the Engagement, rounded to the nearest pound, and calculated in accordance with the following Fee Structure:
Remuneration Introduction Fee
Below £45,000 15%
£45,000 and above 17.5%
4.6. The minimum Introduction Fee for an Engagement shall be £2,000.
4.7. Subject to clause 4.6, the Introduction Fee shall be charged on a pro-rata basis for a fixed term Engagement of less than 12 months (Fixed Term Contract). i.e. 1/12 of the full Introduction Fee for each complete or partial month in which the Candidate is Engaged under a Fixed Term Contract
4.8. If a Fixed Term Contract is extended, or if the Client Engages the Candidate within 6 months from termination or expiry of the Fixed Term Contract, the Client shall pay the balance of the full Introduction Fee to MTSS.
4.9. Any discount or reduction in the Introduction Fee which is agreed between the parties is contingent upon (i) the Client complying with clause 3.3 in all respects and (ii) the Client paying MTSS’ invoice for the Introduction Fee within the Payment Terms.
4.10. If the amount of actual Remuneration is not known or the Client fails to provide details of such Remuneration to MTSS, MTSS will charge an Introduction Fee based on the level of Remuneration which, in MTSS’s reasonable opinion, is the market rate for the Engagement.
4.11. All Introduction Fees shall be charged to the Client in Pounds Sterling (GBP). Where a Candidate’s Remuneration is not provided in GBP, MTSS shall convert the Remuneration to GBP using the exchange rate published by the Bank of England on the date of invoice. The Client shall bear all banking and currency exchange charges when paying MTSS’s invoice.
5. REFUND GUARANTEE
5.1. If the Engagement terminates in the Refund Period, the Introduction Fee or part will be refunded to the Client in accordance with the scale set out in clause 5.2 (Refund), provided that:
- 5.1.1. The Client paid the Introduction Fee within the Payment Terms;
- 5.1.2. The Client notified MTSS in writing within 7 days of the termination of the Engagement, giving the reasons for such termination;
- 5.1.3. The Candidate has not been made redundant or dismissed because the Candidate is no longer required;
- 5.1.4. The Engagement is not a Third Party Engagement;
- 5.1.5. The Client is not in breach of these Terms or any other contract entered into with MTSS; and
- 5.1.6. The Candidate was not previously supplied to the Client by MTSS as a Temporary Worker for a period of more than one month.
5.2. Subject to clause 5.1, MTSS shall within 30 days give a Refund to the Client in accordance with the following scale:
Week Candidate Leaves Refund
1-3 100%
4-6 75%
7-9 50%
10-12 25%
12+ 0%
5.3. For the purposes of this clause 5, the date of termination of the Engagement shall be the date on which the Candidate ceases working or would have ceased working for the Client in the absence of any period of garden leave or pay in lieu of notice, whichever is later.
5.4. If the Client Engages the Candidate again within 6 months of termination of the Engagement, an Introduction Fee shall become payable and upon this further Engagement, there shall be no entitlement to a Refund should the Candidate’s Engagement then terminate.
6. CANCELLATION FEE
If the Client decides to withdraw an offer of Engagement because the Candidate is no longer required, the Client shall pay to MTSS a Cancellation Fee of 25% of the Introduction Fee, which shall be invoiced in accordance with clause 4.
7. NON-SOLICITATION
If the Client makes an offer of engagement to any MTSS employee with whom the Client has had material dealings and such offer is accepted by the employee within three months of the employee leaving MTSS’ employment, the Client shall pay an Introduction Fee to MTSS which shall be calculated in accordance with clause 4.5. The Client shall not be entitled to a Refund if such engagement terminates for any reason.
8. THIRD PARTY INTRODUCTIONS
If a Third Party Introduction results in a Third Party Engagement within the Introduction Period, the Client shall pay an Introduction Fee which shall be calculated in accordance with clause 4.5. The Client shall not be entitled to a Refund if the Third Party Engagement terminates for any reason.
9. RESPONSIBILITY FOR VETTING CHECKS
9.1. The Client shall provide to MTSS all such information as MTSS shall reasonably require regarding the position which the Client is seeking to fill including, without limitation, the information specified in Regulation 18 of the Conduct Regulations.
9.2. The Company shall:
- 9.2.1. take all reasonably practicable steps to ensure that the Candidate and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Candidate to enable the Candidate to work for the Client in the position which the Client seeks to fill;
- 9.2.2. make all such reasonably practicable enquiries to ensure that it would not be detrimental to the interests of the Candidate or the Client for the Candidate to work for the Client in the position which the Client seeks to fill;
- 9.2.3. where the relevant position involves working with, caring for or attending a vulnerable person, take all reasonably practicable steps to:
- 9.2.3.1. obtain copies of any relevant qualifications or authorisations of the Candidate and offer to provide copies of those documents to the Client;
- 9.2.3.2. obtain two references from persons who are not relatives of the Candidate and who have agreed that the reference provided may be disclosed to the Client; and
- 9.2.3.3. confirm that the Candidate is suitable for the position concerned.
9.3. Notwithstanding clause 9.1, the Client acknowledges that the Client is exclusively responsible for determining whether to Engage a Candidate and the Client must therefore make such enquiries and carry out such checks as the Client considers necessary to ensure that the Candidate is suitable for the position which the Client is seeking to fill including, without limitation:
- 9.3.1. Taking up any references provided by the Candidate before Engaging the Candidate;
- 9.3.2. Checking the Candidate’s right to work and obtaining permission to work as may be required by the law of the country in which the Candidate is Engaged to work;
- 9.3.3. Arranging any medical examinations and/or investigations into the medical history of any Candidate; and
- 9.3.4. Checking any other requirements, qualifications or permission required for the Candidate to be Engaged by the Client.
10. CONFIDENTIALITY & DATA PROTECTION
10.1. The Client shall treat all information relating to a Candidate which is provided during the recruitment process as confidential and:
- 10.1.1. Must not use such information for any other purpose without the prior consent of MTSS and the Candidate; and
- 10.1.2. Must ensure that its employees, representatives and agents are all bound by written confidentiality obligations in respect of such information.
10.2. The Client acknowledges that, unless otherwise agreed between the parties in writing, MTSS and the Client shall each act as data controllers in respect of any Data relating to a Candidate and the Client must:
- 10.2.1. Control and process such Data in accordance with the Data Protection Legislation;
- 10.2.2. Provide to the Candidate the information specified under Article 14 of the GDPR and, if requested by the Client, MTSS shall use reasonable endeavours to assist the Client in this regard; and
- 10.2.3. Notify MTSS without delay if any Data relating to a Candidate which has been supplied by MTSS is subject to a Data breach at any time prior to such Candidate becoming Engaged by the Client.
10.3. The Client must not apply for a reference from the Candidate’s current employer prior to the Candidate formally accepting an offer of Engagement.
11. TERMINATION
11.1. Either party may terminate the provision of Recruitment Services by MTSS at any time by notifying the other party in writing.
11.2. Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by MTSS prior to such termination.
12. LIABILITY
12.1. Whilst MTSS will use reasonable endeavours to ensure that any Candidate Introduced to the Client meets the requirements specified by the Client pursuant to clause 9.1, MTSS gives no warranty, whether express or implied, as to the ability, integrity or character of the Candidate.
12.2. MTSS shall not be liable to the Client for any indirect or consequential losses or for any loss of profit, loss of business or loss of goodwill howsoever arising.
12.3. Subject to clause 12.4, the aggregate liability of MTSS to the Client in respect of any claim arising out of or in connection with the performance or non-performance of these Terms and whether in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to the Introduction Fee paid by the Client to MTSS in respect of the Engagement in relation to which such claim arises or, if there was no Engagement, the sum of £2,000.
12.4. For the avoidance of doubt, MTSS does not limit or exclude liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation or for any other claim which may not be limited or excluded by law.
12.5. Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.
12.6. Any claim which the Client may bring against MTSS pursuant to these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.
12.7. The Client shall indemnify MTSS against all losses, damages or claims suffered or incurred by MTSS as a result of any breach of contract, negligence (or any other tortious act), breach of statutory duty or otherwise.
13. BRIBERY & ANTI-CORRUPTION
13.1. The Client and MTSS each warrant that they shall:
- 13.1.1. Comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; and
- 13.1.2. Promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with the performance of these Terms.
14. GENERAL PROVISIONS
14.1. The Client shall not assign any of its rights or obligations under these Terms without the written consent of MTSS.
14.2. The Client shall not deduct or set off against any sum due to MTSS under these Terms, any sum which is owed or which the Client alleges or claims is owed by MTSS to the Client, whether under these Terms or under any other agreement between MTSS and the Client.
14.3. 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 Terms, which shall continue to be valid to the fullest extent permitted by law.
14.4. No failure or delay by a party in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.5. MTSS and the Client do not intend these Terms to be enforceable by any third party.
14.6. These Terms shall be interpreted in accordance with English law.
14.7. The parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising between the parties in relation to the construction, interpretation or performance of the Terms.
TERMS OF BUSINESS FOR THE SUPPLY OF TEMPORARY WORKERS
1. DEFINITIONS & INTERPRETATION1.1. In these Terms of Business (Terms), the following definitions apply:
- 1.1.1. Agency Worker means an agency worker within the meaning of the AWR who may be (i) engaged directly by MTSS under a contract for services or (ii) employed by an Intermediary under a contract of service;
- 1.1.2. Assessment means a written assessment, in a format acceptable to MTSS, as to whether the Assignment falls within the scope of section 61M of ITEPA;
- 1.1.3. Assignment means the temporary role which the Temporary Worker shall undertake for the Client;
- 1.1.4. Assignment Schedule means the document confirming details of the Assignment which is issued to the Client by MTSS;
- 1.1.5. AWR means the Agency Workers Regulations 2010;
- 1.1.6. Charges means the charges made by MTSS for the supply of the Temporary Worker including the Temporary Worker’s hourly or daily rate, MTSS’ commission and, in respect of a Temporary Worker who is an Agency Worker, any Employer’s National Insurance contributions, pension contributions, holiday pay and additional monies due pursuant to the AWR;
- 1.1.7. Client means the business to which the Temporary Worker is Introduced by MTSS including, where the Client is a corporate entity, any holding, subsidiary or associated company;
- 1.1.8. Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended);
- 1.1.9. Consultancy means a limited company or limited liability partnership supplied by MTSS to perform the Services;
1.1.10. Consultancy Data means personal data and special/sensitive personal data within the meaning of the Data Protection Legislation;
- 1.1.11. Data Protection Legislation means (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018;
- 1.1.12. Engagement means the engagement, employment or use of the Candidate by the Client on any basis whatsoever directly or through any party other than MTSS. Engage, Engages and Engaged shall be interpreted accordingly;
- 1.1.13. Intermediary means a third-party company which is engaged by MTSS to provide an Agency Worker or Subcontractor;
- 1.1.14. Intermediaries Legislation means Chapter 10 of Part 2 of ITEPA;
- 1.1.15. Introduction means (i) the provision by MTSS to the Client of a CV or other information which expressly or impliedly identifies a Temporary Worker; (ii) the arrangement of an interview or meeting between the Client and a Temporary whether face to face, by telephone or by web/video conference a Candidate; or (iii) the supply of a Temporary Worker; and “Introduces” and “Introduced” shall be interpreted accordingly;
- 1.1.16. ITEPA means the Income Tax (Earnings and Pensions) Act 2003;
- 1.1.17. MTSS means Michael Taylor Search & Selection Limited (Registered in England & Wales No. 09798491) whose registered office is at Challoner House, 2nd Floor, 19 Clerkenwell Close, London, EC1R 0RR;
- 1.1.18. Payment Terms means 30 days from the date of MTSS’ invoice;
- 1.1.19. Period of Extended Hire means an extension of the Assignment for 16 weeks;
- 1.1.20. Recruitment Services means the Introduction and supply of Temporary Workers to the Client by MTSS;
- 1.1.21. Relevant Period means the later of (i) the period of 8 weeks commencing on the day after the Temporary Worker last worked for the Client during an Assignment or (ii) the period of 14 weeks commencing on the first day on which the Temporary Worker worked for the Client during an Assignment but, in determining the first day on which the Temporary Worker worked for the Client, a prior Assignment shall be disregarded where more than 42 days have passed between Assignments;
- 1.1.22. Restricted Period means the later of (i) six months from the end of the Assignment or (ii) six months from the most recent Introduction of the Temporary Worker to the Client;
- 1.1.23. Remuneration includes gross basic salary or fees, anticipated bonus and commission earnings, allowances, inducement payments, the benefit of a company car and all other payments and taxable (and, where applicable, non-taxable) emoluments payable to or receivable by the Temporary Worker for services provided to or on behalf of the Client or any third party. Where a company car is provided, a notional amount of £5,000 will be added to the salary in order to calculate MTSS’ fee;
- 1.1.24. Representative means the director, officer or employee of a Consultancy who performs the Services on behalf of the Consultancy;
- 1.1.25. SDC means supervision, direction or control as to the manner in which the Services are carried out;
- 1.1.26. Services means the work to be carried out by the Temporary Worker during the course of the Assignment as described in the Assignment Schedule;
- 1.1.27. Subcontractor means a self-employed subcontractor of the Temporary Worker;
- 1.1.28. Temporary Worker means the person, firm or corporate body (including an umbrella company) Introduced or supplied to the Client by MTSS and, save where otherwise indicated, includes a Consultancy, Representative, Subcontractor and Agency Worker; and
- 1.1.29. Transfer Fee means the fee payable pursuant to clause 8.1 below in accordance with Regulation 10 of the Conduct Regulations.
1.2. Unless the context requires otherwise, references to the singular include the plural.
1.3. A person includes a natural person, firm, corporate or unincorporated body (whether or not having a separate legal personality).
1.4. Any phrase introduced by the words including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those words.
1.5. A reference to a statute or statutory provision is reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.6. The headings in these Terms are for convenience only and do not affect their interpretation.
2. BASIS OF CONTRACT
2.1. These Terms, incorporating the Assignment Schedule, comprise the entire agreement between MTSS and the Client for the supply of a Temporary Worker to the Client and shall prevail over any alternative terms which are proposed by the Client.
2.2. These Terms shall be deemed to have been accepted by the Client upon signing them or otherwise expressly indicating their acceptance in writing, instructing MTSS to supply a Temporary Worker or Engaging the Temporary Worker, whichever occurs first.
2.3. The Client shall not rely on any statement, promise or representation made or given by or on behalf of MTSS which is not set out in these Terms.
2.4. No variation or alteration to these Terms shall be valid unless the details of such a variation are agreed between a director of MTSS and the Client, are set out in writing and a copy of the varied Terms is given to the Client stating the date on or after which such varied Terms shall apply.
2.5. For the purposes of the Conduct Regulations, MTSS shall be acting as an employment business when introducing or supplying a Temporary Workers for an Assignment with the Client.
2.6. Unless MTSS notifies the Client that a Temporary Worker has opted-out of the Conduct Regulations, the Conduct Regulations shall be deemed to apply to any Assignment carried out by a Temporary Worker.
3. INTRODUCTIONS
3.1. MTSS shall provide Recruitment Services to the Client and use reasonable endeavours to Introduce Temporary Workers from time to time who:
- 3.1.1. Meet the criteria specified by the Client pursuant to clause 4.1, where applicable; or
- 3.1.2. MTSS believes may otherwise be of interest or relevance to the Client.
4. CLIENT OBLIGATIONS
4.1. Where the Conduct Regulations apply to an Assignment, the Client shall provide to MTSS all such information regarding the Assignment which is specified in Regulation 18 of the Conduct Regulations.
4.2. The Client will comply and will assist MTSS with complying with its obligations under the AWR by, without limitation:
- 4.2.1. Providing the Agency Worker with access to collective facilities and amenities and information about permanent employment opportunities with the Client;
- 4.2.2. Providing information to MTSS about any previous assignment for which the Agency Worker has been supplied by any other employment business;
- 4.2.3. Where relevant, providing written details of the relevant terms and conditions which apply to any actual or hypothetical comparator to the Agency Worker together with any amendments to such terms and conditions where appropriate;
- 4.2.4. Co-operating with MTSS in responding to or assisting MTSS with responding to any question or complaint made under the AWR in a timely manner;
- 4.2.5. Permitting a pregnant Agency Worker to attend ante-natal appointments, with pay, during working time after the 12-week qualifying period;
- 4.2.6. Carrying out a risk assessment in respect of any pregnant Agency Worker and making such adjustments to the Assignment as are necessary to protect the Agency Worker’s health and wellbeing or, where necessary, identifying a suitable alternative Assignment within the Client’s organisation for the Agency Worker to perform; and
- 4.2.7. After the 12 week qualifying period under the AWR, paying a proportional increase in the hourly charges for the Agency Worker where necessary, together with any other emoluments to which the Agency Worker is entitled.
4.3. The Client warrants that s44(2)(a) of Income Tax (Earnings and Pensions) Act 2003 (ITEPA) shall apply to any Assignment carried out by a Subcontractor and the Client must notify MTSS without delay it believes that s44(2)(a) ITEPA 2003 is not or is no longer applicable to an Assignment.
4.4. Subject to clause 4.8, the Client acknowledges that a Consultancy may appoint an alternative Representative to perform the Services from time to time and, subject to verifying that the alternative Representative is equally skilled, qualified, security cleared and able to perform the Services, the Client shall accept the appointment of such alternative Representative.
4.5. Subject to clause 4.8, the Client shall not move any Consultancy or Subcontractor to a different task or project or otherwise materially vary the Assignment without first agreeing such move or variation with MTSS.
4.6. Subject to clause 4.8, the Client acknowledges that a Consultancy or Subcontractor shall determine their own schedule when performing the Services and the location in which such Services are performed, subject to the Client’s reasonable operational requirements and the specific nature of the Assignment.
4.7. Subject to clause 4.8, the Client shall not exercise or permit any third party to exercise SDC (or assert the right thereof) over any Consultancy or Subcontractor during an Assignment. Nothing in this clause shall affect the Client’s obligations under clause 4.9.
4.8. Clauses 4.4 - 4.7 shall not apply where the parties have agreed that the Assignment (ii) falls within the scope of section 61M of ITEPA or (ii) otherwise falls within the Intermediaries Legislation.
4.9. The Client must:
- 4.9.1. Provide a safe working environment for the Temporary Worker;
- 4.9.2. Ensure that, where applicable, the Temporary Worker uses all necessary safety and personal protective equipment during the Assignment;
- 4.9.3. Comply with all statutory provisions, by-laws, codes of practice and other legal obligations in respect of the Temporary Worker’s health and safety whilst carrying out an Assignment; and
- 4.9.4. Maintain records of any accident or injury affecting the Temporary Worker and provide copies of such records to MTSS upon demand; and
- 4.9.5. Ensure that the Temporary Worker is insured under the Client’s insurance policies for the duration of the Assignment.
4.10. The Client must not request the supply of a Temporary Worker to perform the duties normally performed by a worker who is taking part in official industrial action or duties normally performed by a worker who has been transferred by the Client to perform the duties of a person on strike or taking official industrial action.
4.11. The Client must notify MTSS forthwith if it is aware of any reason why it would be detrimental to the interests of the Temporary Worker to carry out the Assignment.
4.12. The Client must notify MTSS immediately if it intends to Engage a Temporary Worker, extend an Assignment or otherwise vary the Assignment in any way.
5. PROVISION OF INFORMATION
5.1. The Client must inform MTSS of:
- 5.1.1. The information relating to an Assignment specified in Regulation 18 of the Conduct Regulations;
- 5.1.2. Whether the Temporary Worker requires a DBS disclosure or any other check or clearance to carry out the Assignment;
- 5.1.3. Any Health and Safety information which is relevant to the Assignment;
- 5.1.4. Such Information as MTSS may require to comply with the Working Time Regulations (WTR) and the Client shall do nothing to cause MTSS to breach the WTR;
and
- 5.1.5. Any reason why it may be detrimental to the interests of the Temporary Worker to carry out the Assignment.
5.2. If requested by MTSS, the Client shall provide all such information as MTSS shall require to determine whether or not a Temporary Worker shall be subject to SDC during an Assignment. The Client acknowledges that MTSS shall rely upon any such information which is provided and the Client warrants that such information shall be accurate.
5.3. If the Client is a Public Authority or the Assignment otherwise falls within the scope of Chapter 10 of Part 2 of ITEPA, the Client must:
- 5.3.1. Notify MTSS of this information without delay;
- 5.3.2. Provide an Assessment to MTSS prior to commencement of the Assignment where requested by MTSS;
- 5.3.3. Ensure that any Assessment provided to MTSS is accurate; and
- 5.3.4. Provide all such information as MTSS may reasonably require, without delay, to justify or support the Assessment.
5.4. The Client shall indemnify and keep indemnified MTSS against any liability for PAYE income tax or National Insurance contributions (including any penalties) suffered or incurred by MTSS in relation to any Temporary Worker where the Client (i) provides an inaccurate Assessment (ii) fails to provide an Assessment or (iii) fails to comply with clause 4.7.
5.5. The Company shall issue an Assignment Schedule to the Client on commencement of the Assignment or otherwise within three business days of its commencement.
6. TEMPORARY WORKER CHECKS
6.1. The Company shall:
- 6.1.1. Take all reasonably practicable steps to ensure that the Temporary Worker and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Temporary Worker to enable the Temporary Worker to perform the Assignment;
6.1.2. Make all such reasonably practicable enquiries to ensure that it would not be detrimental to the interests of the Temporary Worker or the Client for the Temporary Worker to perform the Assignment for the Client;
6.1.3. Where Client has informed MTSS that the Assignment involves working with, caring for or attending a vulnerable person, take all reasonably practicable steps to:
- 6.1.3.1. Obtain copies of any relevant qualifications or authorisations of the Temporary Worker and offer to provide copies of those documents to the Client;
- 6.1.3.2. Obtain two references from persons who are not relatives of the Temporary Worker and who have agreed that the reference provided may be disclosed to the Client; and
- 6.1.3.3. Confirm that the Temporary Worker is suitable for the position concerned.
7. TIMESHEETS
7.1. At the end of each week of an Assignment (or at the end of the Assignment where it is for a period of one week or less), the Client shall sign a timesheet in a format specified by MTSS verifying the number of hours worked by the Temporary Worker during that week.
7.2. The Client is responsible for ensuring that the hours shown on the Temporary Worker’s timesheet are correct and that only duly authorised employees sign the timesheet.
7.3. Signature of the timesheet by the Client is confirmation of the number of hours worked. If the Client is unable to sign a timesheet produced for authentication by the Temporary Worker because the Client disputes the hours claimed, the Client shall inform MTSS as soon as is reasonably practicable and shall co-operate fully and in a timely manner with MTSS to enable MTSS to establish what hours, if any, were worked by the Temporary Worker.
7.4. Failure to sign the timesheet does not absolve the Client’s obligation to pay the charges in respect of the hours worked.
7.5. The Client acknowledges that MTSS shall rely upon the Client’s confirmation of the number of hours worked by the Temporary Worker and the Client must not retrospectively adjust the number of hours duly confirmed as having been worked by the Temporary Worker.
7.6. The Client shall not be entitled to decline to sign a timesheet on the basis that the Client is dissatisfied with the Services but may be entitled to terminate the Assignment in accordance with clause 11 below.
8. CHARGES
8.1. The Client shall pay the Charges as agreed between the Client and MTSS and confirmed in the Assignment Schedule.
8.2. MTSS shall issue an invoice to the Client for the Charges each week and such invoice shall be payable within the Payment Terms. VAT shall be charged at the standard rate on the Charges.
8.3. MTSS may vary the Charges, by giving written notice to the Client, in order to comply with any additional or amended statutory liability.
8.4. There are no refunds or rebates payable in respect of the Charges and the Client shall pay the Charges without deduction or set off including, without limitation, any deduction in respect of the CITB levy.
8.5. If an invoice is not paid within the Payment Terms, MTSS may:
- 8.5.1. Terminate the supply of Temporary Workers to the Client without notice;
- 8.5.2. Pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, charge late payment compensation in respect of such invoice;
- 8.5.3. Charge interest at the rate of 8% per annum above the base rate of the Bank of England from the due date until the date of payment; and
- 8.5.4. Refer the collection of such payment to its legal representatives and, in such circumstances, the Client shall be liable for all costs, fees (including legal fees on an indemnity basis), charges and disbursements incurred by MTSS in recovering payment from the Client.
9. RESPONSIBILITY FOR PAYMENTS
MTSS is responsible for making payments to the Temporary Worker and, in respect of an Agency Worker, shall ensure that PAYE Income Tax and National Insurance Contributions are deducted from such payments pursuant to sections 44-47 of ITEPA 2003.
10. TRANSFER FEES
10.1. Subject to clause 10.5, the Client shall pay a Transfer Fee (“Transfer Fee”) if the Client Engages a Temporary Worker Introduced by MTSS or introduces the Temporary Worker to a third party and such introduction results in an engagement of the Temporary Worker by the third party and:
- 10.1.1. Where the Temporary Worker has commenced an Assignment and has not opted out of the Conduct Regulations, such Engagement takes place within the Relevant Period; or
- 10.1.2. Where the Temporary Worker has commenced an Assignment and has opted out of the Conduct Regulations or where the Temporary Worker has not commenced an Assignment, such Engagement takes place within the Restricted Period.
10.2. The Transfer Fee shall be calculated as a percentage of the annualised Remuneration payable to the Temporary Worker for the Engagement in accordance with the following Transfer Fee Structure:
Remuneration Introduction Fee
Below £45,000 15%
£45,000 and above 17.5%
10.3. If the actual Remuneration is not disclosed to MTSS, the Transfer Fee shall be the hourly Charge at which the Temporary Worker was (or would have been) supplied to the Client multiplied by 350.
10.4. No refund of the Transfer Fee will be due if the Engagement subsequently terminates.
10.5. Unless the Temporary Worker has opted out of the Conduct Regulations, the Client may, instead of paying the Transfer Fee, on giving one week’s written notice to MTSS, request that the Temporary Worker provides the Services for the Period of Extended Hire.
10.6. During a Period of Extended Hire, MTSS shall supply the Temporary Worker on the same terms as which they were supplied during the Assignment and, in any case, on terms no less favourable than those terms which applied immediately before MTSS received the notice pursuant to clause 10.5.
10.7. If MTSS is unable to supply the Temporary Worker for any reason outside its control for the whole or any part of the Period of Extended Hire or the Client does not wish to hire the Temporary Worker on the same terms as the Assignment but the Temporary Worker is Engaged by the Client, the Client shall pay the Transfer Fee as set out in clause 10.2 above.
11. TERMINATION
11.1. Subject to clauses 11.2, 11.3 and 11.4, either party may terminate an Assignment at any time by giving the notice specified in the Assignment Schedule or, if no period of notice is specified, at any time without notice.
11.2. Irrespective of any notice period specified in the Assignment Schedule, either party may terminate an Assignment without notice if the other party has committed a serious or persistent breach of its obligations under these Terms, if the other party undergoes a change of control or becomes insolvent.
11.3. MTSS may terminate an Assignment without notice if it becomes aware of any reason why the Temporary Worker is unsuitable to work in the Assignment.
11.4. If the Client, acting reasonably, is dissatisfied with the Services, the Client may on the first day terminate an Assignment within the first 4 hours if the booking was for more than 7 hours (or within the first 2 hours if the booking was for 7 hours or less) and, provided that such termination is confirmed by the Client in writing within 48 hours, the Employment Business shall cancel the Charges for such period.
11.5. Either party may terminate the provision of Recruitment Services by MTSS at any time by notifying the other party in writing.
11.6. Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by MTSS prior to such termination.
12. CONFIDENTIALITY AND DATA PROTECTION
12.1. The Client acknowledges that, unless otherwise agreed between the parties in writing, MTSS and the Client shall each act as data controllers in respect of any Data relating to a Temporary Worker and the Client must:
- 12.1.1. Control and process such Data in accordance with the Data Protection Legislation;
- 12.1.2. Provide to the Temporary Worker the information specified under Article 14 of the GDPR and, if requested by the Client, MTSS shall use reasonable endeavours to assist the Client in this regard; and
- 12.1.3. Notify MTSS without delay if any Data relating to a Temporary Worker which has been supplied by MTSS is subject to a Data breach at any time prior to such Temporary Worker completing an Assignment with the Client.
12.2. Save to the extent that MTSS is required to disclose such information to the Temporary Worker, MTSS shall keep confidential any information provided by the Client for the purpose of complying with the AWR and shall not use it for any other purpose.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. MTSS acknowledges that all copyright, trade marks, patents, design rights and other intellectual property rights deriving from the Assignment shall belong to the Client.
13.2. MTSS shall use reasonable endeavours to ensure that the Temporary Worker, at the Client’s expense, executes such documents and takes such action as is necessary to waive any moral rights in or transfer such intellectual property rights to the Client.
14. LIABILITY
14.1. Whilst MTSS shall use reasonable endeavours to Introduce Temporary Workers to the Client from time to time, MTSS shall not be liable if it does not Introduce a Temporary Worker.
14.2. The Client shall be responsible for the supervision, direction and control of an Agency Worker during their Assignment.
14.3. The Company shall not be liable for (i) the acts or omissions of any Temporary Worker (ii) any loss, theft or damage to any tools, equipment or other property issued to or used by the Temporary Worker during the Assignment or (iii) the performance or non-performance of the Services.
14.4. In the event of any error or defect in Services which are performed by a Consultancy or Subcontractor and notified to MTSS within a reasonable period, MTSS shall require the Consultancy or Subcontractor to remedy such error or defect in its own time and at its own expense. The Company shall not however be liable to the Client if the Consultancy or Subcontractor refuses or fails to remedy such error or defect.
14.5. MTSS shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty or otherwise for failing to supply a Temporary Worker, for terminating an Assignment, for any claim for loss of profit or business, or for any indirect or consequential loss arising out of or in connection with these Terms.
14.6. Subject to clause 14.7, the aggregate liability of MTSS to the Client in respect of any claim or series of claims arising out of or in connection with these Terms shall be limited to 15% of the Charges paid by the Client in relation to the relevant Temporary Worker in the three month period immediately prior to such claim arising or, if there was no supply of a Temporary Worker, the sum of £5,000.
14.7. MTSS does not limit or exclude liability for death or personal injury arising from its own negligence or for any other claim which may not be limited or excluded by law.
14.8. Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.
14.9. The Client shall indemnify and keep indemnified MTSS against all losses, damages or claims suffered or incurred by MTSS as a result of any breach of contract, negligence (or any other tortious act), breach of statutory duty or otherwise.
14.10. The Client shall indemnify and keep indemnified MTSS against any demand or assessment for PAYE income tax or National Insurance contributions (including any penalties) suffered or incurred by MTSS where the Client has failed to ensure that s44(2)(a) ITEPA 2003 applies to an Assignment carried out by a Consultancy.
15. BRIBERY & ANTI-CORRUPTION
15.1. The Client and MTSS each warrant that they shall:
- 15.1.1. Comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; and
- 15.1.2. Promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with the performance of these Terms.
16. GENERAL PROVISIONS
16.1. The Client shall not assign any of its rights or obligations without the written consent of MTSS.
16.2. The Client shall not deduct or set off against any sum due to MTSS, any sum which is owed or which the Client alleges or claims is owed by MTSS to the Client.
16.3. 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 Terms, which shall continue to be valid to the fullest extent permitted by law.
16.4. No failure or delay by a party in exercising any right or remedy under the Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16.5. The Terms shall be interpreted in accordance with English law.
16.6. The parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising between the parties in relation to the construction, interpretation or performance of the Terms.
