Section/Definition/Clause  

Note

This document is for use with an individual candidate covering both your work finding service and the engagement of the candidate on a contract for services to carry out an assignment.  To meet the requirements of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (“Conduct Regulations”), unless an alternative work finding agreement is in place this agreement should be issued prior to the provisions of any work finding services. 

An individual providing services under this contract has the status of worker. The Conduct Regulations and the Employment Rights Act 1996 (“ERA”) require specific information be included in terms with work seekers and workers. The provisions in this agreement have been included to meet these specific requirements. Save where specified in this guidance, please seek advice before removing or amending any provision in this agreement to avoid non-compliance.  

In addition to agreeing terms with a work seeker, from April 2020 R.13A of the Conduct Regulations requires a work seeker to be issued a Key Information Document. For more information contact Lawspeed on 01273 236236.  

We are      [trading as]

Insert your trading name if any. If your trading name is the same as your actual name the wording in square brackets and the square brackets can be deleted. 

You are 

Insert full candidate name and address details.

Introduction 

[please contact us….] You may not want to use a consultant email. If not delete the reference to consultant email. Always insert your default email address

Privacy Notice – Insert your web address if you have the notice on your website, if not, delete the words in the square brackets.

Work Types – Insert the types of work that you might seek for the candidate, for example, teaching, childcare, healthcare, IT, telecoms, engineering etc. This description does not have to be specific to the candidate’s CV, but Employment Agency Standards (“EAS”) will expect that the work types reflect the sector and potential roles that the person supplied may operate in. 

Agreement and Acceptance 

There is the option of a signature. However, acceptance can also be via express confirmation, or deemed accepted as a result of the candidate’s request for work to be sought, to be introduced or the undertaking of work under a Proposal. 

The date of the contract and name of the individual candidate should be included in the section marked  << field >>.

OPT OUT

The candidate can opt out of the maximum 48 hour working week, provided for in the Working Time Regulations 1998, as amended. Delete it if you do not want to use the opt out. Insert full candidate name in the <<field>>.

Clause 2.0(c)

The definition of Relative in the Conduct Regulations is as follows: someone related to you, your spouse (including by definition a civil partner) or former spouse, or being your (a) father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter, (b) brother, sister, uncle, aunt, niece, nephew or first cousin, (c) any such person whether of the full blood or of the half blood or by marriage or civil partnership. You may like to print out this list and give it to the candidate when you are asking the candidate either to sign the contract or when you are seeking references. Remember that the Conduct Regulations do not oblige you to obtain references unless the applicant is required by law or professional requirements to have specific qualifications, or is to work with elderly or infirm people or work with children under 18. If your candidate does not fit into any of these categories there is no need to spell out the definition of relative. If you are obtaining references by choice you need not confirm that the referees are not relatives, although it may be good practice to do that in any event.

Clause 2.1(a)

The Equality Act 2010 prohibits candidates from being asked about their health before employment is offered, save in limited circumstances. We recommend that questions relating to a candidate’s health should be limited to those that are relevant to the assessment process and adjustments that may need to be made, and where relating to the candidate’s ability to undertake a task which is intrinsic to the role or as a form of positive discrimination.

Clause 4.2(a)

If a candidate is not given access to relevant facilities and amenities, this should be flagged up to the client as it may indicate a breach of Regulation 12 or 13 of the Agency Worker Regulations 2010.

Clause 4.3

In the brackets, insert the timeframe in which a candidate must notify you of absence. Remove the brackets and yellow highlighting. We suggest a period of time prior to the start of the shift, for example 1 hour, to reflect the fact that candidate start times may vary. 

Clause 5.4(d)

As holiday request procedures may differ from business to business, ensure that a candidate is aware of the process and any standard forms. 

Clause 6.3

This clause covers requirements of the ERA, namely that the contract must include; details of applicable disciplinary procedures, processes to be followed for complaints or grievances, and a Key Contact (see definitions) to report to. 

Section 10 – payment 

As the candidate has the status of a worker under this agreement, and national insurance contributions are applicable, in addition to being paid for work performed under an assignment, the candidate may be entitled to paid annual leave, pension contribution under auto enrolment and some other statutory payments (e.g. SSP, SMP etc.). Note that information in respect of payments, pension contributions, sick pay and holiday may is required to be included in a contract with a worker.   

The Conduct Regulations preclude an employment business from withholding payment from a worker by reason of non-payment by a client. Whilst EAS has suggested that this clause may offend the Conduct Regulations our view is that the clause does not breach the Conduct Regulations because the agreement to deduct is in respect of damages for breach of contract, not because the Client has withheld payment in the circumstances described. However, any damages would be based upon loss sustained as a result of monies not being paid by the Client. The benefit and object of the clause is to deter candidates from delaying in submitting timesheets. 

The reference to Holiday pay in clause 10.5, as highlighted in yellow and included in red square brackets should be removed if a rolled up holiday pay option is selected.

For advice on worker status, statutory payments, withholding payments, or disputes contact Lawspeed on 01273 236 236.

Section           11          –             specific acknowledgements, absence and holidays 

Clauses 11.0 to 11.1 address holiday entitlement, and include specific detail as required by both the Conduct Regulations and the ERA. Holiday entitlement will usually be as set out in the Working Time Regulations, however agency workers may be entitled to more than the statutory minimum holidays under the Agency Workers Regulations.  

Clause 11.0(b) allows or the inclusion of your specific leave year. Clause 11.1 provides that holiday pay is on accrued basis and paid at the time holiday is taken. You can select the option in the yellow highlighting if holiday pay is paid on a rolled up basis as an on account sum when each payment is made. Rolled up holiday pay is technically a breach of the working time legislation. However, the courts have allowed amounts that are paid transparently and comprehensibly as rolled up holiday to be offset against a workers entitlement. Specific advice should therefore be taken prior to any decision to address holiday pay on a rolled up basis.  Please select the appropriate options, delete the option that is not applicable and remove any yellow highlighting and square brackets prior to issue.  See also the definition of Holiday pay so that an appropriate option can be selected. 

For more advice on calculating holiday entitlement, payments on termination , rolled up holiday pay or how AWR works in relation to holidays please contact Lawspeed on 01273 236 236.

Clause 14.4

The limit on your liability shown here is probably not a bad stab at what may be reasonable. Remember that the candidate can sue you for breaches of the Conduct Regulations and your insurance should cover that aspect.

Section 15  definitions and meanings

This section contains the definitions applicable to the agreement, and requires the insertion of some specific information and selection of options as follows:

Holiday Pay –includes options depending upon whether holiday is paid at the time it is taken, or on a rolled up basis. See note on Section 11 for further information.

Minimum Rate – insert the minimum rate at which you will seek work for a candidate. This does not have to be specific to a rate offered for an assignment, but should reflect likely pay rates and be at least the applicable National Minimum Wage. The inclusion of a minimum rate is a requirement of the Conduct Regulations.

Notice To Terminate – The Conduct Regulations require that terms addressing your work finding service (to be in place prior to the provision of a work finding service) include the length of notice required to terminate an assignment. We have included a default period of 1 week, unless specified in an Assignment. A notice period must always be in included. Note: unless an Assignment includes an alternative notice period or does not require notice to be given, the notice period to terminate an Assignment will be the period stated in this definition.

Payment terms – select/insert the payment terms applicable to your business, deleting the options not used.

Privacy notice – if you wish to specify where your privacy notice can be located insert your web address here.

All yellow highlighting and square brackets should be removed prior to issue to candidates. 

Appendix 1 – general

Best advice is that a work Proposal is given in writing in the form suggested here and that you ask the candidate to accept the proposal. You should create each Proposal using this draft form. It does not need to be signed by the candidate as attendance at the work is deemed acceptance. However best practice is to get a signature or email acceptance. 

Key Contact

Insert the name, job title or contact details for the person to whom a candidate should raise any grievance or compliant regarding a disciplinary matter. 

Collective agreements 

It is a requirement of the ERA that you specify whether there are any collective agreements applicable to the worker, this could be an agreement which applies to your business or a collective agreement applicable to the site on which the candidate is providing his or her services. This is most common in unionised sites or organisations. Pleases select the most appropriate option for the assignment. 

Contract Site 

This will be the site at which it has been agreed that the services will be performed by the candidate. This may be a specific address or area. If the services are to be performed outside of the UK for more than 1 month, the candidate must be informed of the duration, currency for payments, additional remuneration and additional terms relating to this work. 

Work Services 

A description of the work or a job title should be inserted here. 

Assignment Term

Insert the intended duration and select the relevant option depending upon whether this is intended to be for a specific term, or there is the possibility of extension. 

Training requirements 

The ERA requires that terms with a worker include details of any training entitlement the worker has, and training the worker is required to undertake and applicable costs. The information can either be included here or included in another documents to which the worker has reasonable access. If there is no information regarding training that can be included, N/A should be selected.  In either case the unused option, square brackets and yellow highlighted should be removed prior to issue.  

Work Time

We have inserted all options here. Overtime however only works with Standard Hours, not Professional Day. Select the option you require and delete the option/s not selected.

Please select and complete the same options in respect of the Pay Rate.

Working Day

The ERA requires that the days on which a worker will be required to work are specified.  Please select the option which is applicable to the assignment.

Notice to Terminate

Please insert notice provisions here if there are any that are applicable. If the candidate is not permitted to give notice we suggest that you state the notice as being N/A. 

Note that as a default notice period is included within the definition of Notice to terminate, the default will apply unless something is stated to the contrary in this section. 

Special Terms

Special Terms would usually be requirements specific to a Client or Assignment, for example a requirement to comply with a particular Client procedure, to sign certain undertakings in favour of the Client or the provision of a warranty that the Client requires. If applicable this should be set out here. If none apply select N/A.

Acceptance of Proposal

There is the option of a signature. However, acceptance can also be via express confirmation, or deemed accepted as a result of the candidate’s commencement of the work set out in the Proposal.

The date of the proposal and name of the individual candidate should be included in the section marked << field >>.