PLEASE READ CAREFULLY
The Terms and Conditions set out below shall apply to all contractual dealings between AE Driver Training & Recruitment Ltd and the Client as defined below. They contain limitations and exclusions.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement the following definitions apply:
“AE Driver” means AE Driver Training & Recruitment Ltd (registered company no. 9431350) of Lilliput Road Brackmills Northampton NN4 7DT
“Agreement” means these terms of business (including any attached schedules) together with the applicable written confirmation of the assignment details agreed with the Client prior to commencement of the Assignment;
“ARW” means the Agency Workers Regulations 2010;
“Assignment” means the services to be performed by the Driver for the Client for a period of time during which the Driver is supplied by AE Driver to work temporarily for and under the supervision and direction of the Client;
“AWR Claim” means any complaint or claim to a tribunal or court made by or on behalf of the Driver against the Client and/or AE Driver for any breach of the ARW arising from or connected with the Assignment;
“Charges” means the hourly charges of AE Driver calculated in accordance with clause 6.1 as may be varied from time to time in accordance with this Agreement;
“Client” means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) to whom the Driver is introduced by way of an Introduction;
“Client's Group” means (a) any individual, company, partnership, statutory body or other entity which from time to time Controls the Client, including as a holding company as defined in section 1159 of the Companies Act 2006; and (b) any company, partnership, statutory body or other entity which from time to time is Controlled by or is under common Control with the Client, including as a subsidiary or holding company as defined in section 1159 of the Companies Act 2006;
“Comparable Employee” means as defined in Schedule 1 to this Agreement;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
“Confidential Information” means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Client or Employment Business or their business or affairs (including but not limited to this Agreement, data, records, reports, agreements, software, programs, specifications, know-how, trade secrets and other information concerning the Assignment) in any form or medium whether disclosed or granted access to whether in writing, orally or by any other means, provided to the Driver or any third party in relation to the Assignment by the Client or AE Driver or by a third party on behalf of the Client whether before or after the date of this Agreement together with any reproductions of such information in any form or medium or any part(s) of such information;
“Control” means (a) the legal or beneficial ownership, directly or indirectly, of more than 50% of the issued share capital or similar right of ownership; or (b) the power to direct or cause the direction of the affairs and/or general management of the company, partnership, statutory body or other entity in question, whether through the ownership of voting capital, by contract or otherwise, and "Controls" and "Controlled" shall be construed accordingly;
“Data Protection Laws” means the Data Protection Act 1998, any applicable statutory or regulatory provisions and all European Directives and regulations in force from time to time relating to the protection and transfer of personal data;
“Driver” means the individual who is introduced by AE Driver to provide services to the Client;
“Engagement” means the engagement, employment or use of the Driver by the Client or any third party to whom the Driver has been introduced by the Client, directly or indirectly, on a permanent or temporary basis, whether under a contract of service or for services, and/or through a company of which the Driver is an officer, employee or other representative, an agency, license, franchise or partnership arrangement, or any other engagement; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;
“First Assignment” means:
(a) the relevant Assignment; or
(b) if, prior to the relevant Assignment:
(i) the Driver has worked in any assignment in the same role with the relevant Client as the role in which the Driver works in the relevant Assignment; and
(ii) the relevant Qualifying Period commenced in any such assignment, that assignment (an assignment being (for the purpose of this defined term) a period of time during which the Driver is supplied by one or more Temporary Work Agencies to the relevant Client to work temporarily for and under the supervision and direction of the relevant Client);
“Introduction” means (i) the passing to the Client of a curriculum vitae or information which identifies the Driver; or (ii) the Client’s interview of the Driver (in person or by telephone or by any other means), following the Client’s instruction to AE Driver to supply a temporary worker; or (iii) the supply of the Driver; which in each or any case, leads to an Engagement of the Driver; and “Introduced” and "Introducing" shall be construed accordingly;
“Losses” means all losses, liabilities, damages, costs and expenses, of whatever kind, and whether direct, indirect, special or consequential (including any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and all and every charge whatsoever, recognised in equity or in law, including such items arising out of or resulting from any actions, proceedings, claims and demands;
“Period of Extended Hire” means any additional period that the Client wishes the Driver to be supplied for beyond the duration of the original Assignment or series of Assignments as an alternative to paying a Transfer Fee;
“Qualifying Period” means 12 continuous Weeks during the whole or part of which the Driver is supplied by one or more Temporary Work Agencies to the relevant Client to work temporarily for and under the supervision and direction of the relevant Client in the same role, and as further defined in Schedule 1 to this Agreement;
“Relevant Period” means (a) the period of 12 months commencing on the day after the last day on which the Driver worked for the Client having been supplied by AE Driver; and/or (b) the period of 8 weeks commencing on the day after the last day on which the Driver worked for AE Driver;
“Relevant Terms and Conditions” means terms and conditions relating to:
(b) the duration of working time;
(c) night work;
(d) rest periods;
(e) rest breaks; and
(f) annual leave
that are ordinarily included in the contracts of employees or workers (as appropriate) of the Client whether by collective agreement or otherwise and including (for the avoidance of doubt and without limitation) such terms and conditions that have become contractual by virtue of custom and practice, including copies of all relevant documentation;
“Remuneration” includes gross base salary or fees, guaranteed and/or 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 Driver for services provided to or on behalf of the Client or any third party;
“Shift” Each continuous period of work during an Assignment;
“Temporary Work Agency” means as defined in Schedule 1 to this Agreement;
“Transfer Fee” means the fee payable in accordance with clause 8 of this Agreement and Regulation 10 of the Conduct Regulations;
“Vulnerable Person” means any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care or attention, and includes any person under the age of eighteen; and
“Week” means any period of seven days starting with the same day as the first day of the First Assignment;
“WTR” means the Working Time Regulations 1998.
1.2. Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3. The headings contained in this Agreement are for convenience only and do not affect their interpretation.
1.4. Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of this Agreement) and all subordinate legislation made (before or after this Agreement) under it from time to time.
1.5. Any reference to this “Agreement” means these terms of business (including any attached schedules) together with the applicable written confirmation of the assignment details agreed with the Client prior to commencement of the Assignment.
1.6. Where the word “including” is used it shall not be deemed to be limited to the item or items which follows.
1.7 A “day” for the purpose of an Assignment shall be not less than 8 hours
2. THE CONTRACT
2.1. This Agreement constitutes the contract between AE Driver and the Client for the supply of the Driver’s services by AE Driver to the Client and is deemed to be accepted by the Client by virtue of its request for, interview with or Engagement of the Driver, or the passing of any information by the Client about a Driver to any third party following an Introduction.
2.2. This Agreement contains the entire agreement between the parties and unless otherwise agreed in writing by a Director of AE Driver, this Agreement prevails over any terms of business or purchase conditions (or similar) put forward by the Client.
2.3. Subject to clause 6.2, no variation or alteration to this Agreement shall be valid unless the details of such variation are agreed between a Director of AE Driver and the Client and 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.
2.4. AE Driver shall act as an employment business (as defined in Section 13(3) of the Employment Agencies Act 1973) when Introducing Drivers for Assignments with the Client.
3. CLIENT OBLIGATIONS
3.1. To enable AE Driver to comply with its obligations under the Conduct Regulations the Client warrants and confirms to provide to AE Driver details of the position which the Client seeks to fill, including but not limited to the type of work that the Driver would be required to do, the location and hours of work, the experience, training, qualifications and any authorisation which the Client considers necessary or which are required by law or any professional body for the Driver to possess in order to work in the position, any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks.
3.2. The Client undertakes to assist AE Driver in complying with AE Driver' duties under the WTR by supplying any relevant information about the Assignment requested by AE Driver and the Client will not do anything to cause AE Driver to be in breach of its obligations under these regulations. If the Client requires the services of a Driver for more than 48 hours in any week during the course of an Assignment, the Client must notify AE Driver of this requirement before the commencement of the Assignment or at the very latest, where this is not reasonably practicable, before the commencement of the week in which the Client requires the Driver to work in excess of 48 hours.
3.3. The Client will comply with its obligations under Regulation 12 (Rights of agency workers in relation to access to collective facilities and amenities) and 13 (Rights of agency workers in relation to access to employment) of the ARW.
3.4. To enable AE Driver to comply with its obligations under the ARW, the Client undertakes as soon as possible prior to the commencement of each Assignment and during each Assignment (as appropriate) and at any time at AE Driver' request:
3.4.1. to inform AE Driver of any Weeks since 1 October 2011 in which the relevant Driver has worked in the same or a similar role with the Client via any third party prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment which count or may count towards the Qualifying Period;
3.4.2. if, since 1 October 2011, the Driver has worked in the same or a similar role with the Client via any third party prior to the date of commencement of the relevant Assignment and/or works in the same or a similar role with the Client via any third party during the relevant Assignment, to provide AE Driver with all the details of such work, including (without limitation) details of where, when and the period(s) during which such work was undertaken and any other details requested by AE Driver;
3.4.3. to inform AE Driver if the Driver has prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment worked in more than two roles during an assignment with the Client and on at least two occasions worked in a role that was not the same role as the previous role;
3.4.4. save where the Driver will not complete the Qualifying Period during the term of the Assignment, to:
18.104.22.168. provide AE Driver with written details of the basic working and employment conditions the Driver would be entitled to for doing the same job if the Driver had been recruited directly by the Client as an employee or worker at the time the Qualifying Period commenced or with those of a Comparable Employee, such basic working and employment conditions being the Relevant Terms and Conditions;
22.214.171.124. inform AE Driver in writing whether the Relevant Terms and Conditions provided are those of a hypothetical directly recruited employee or worker or those of a Comparable Employee;
126.96.36.199. if the Relevant Terms and Conditions provided are those of a Comparable Employee, provide AE Driver with a written explanation of the basis on which the Client considers that the relevant individual is a Comparable Employee; and
188.8.131.52. inform AE Driver in writing of any variations in the Relevant Terms and Conditions made at any time during the relevant Assignment after the Qualifying Period commenced; and
3.4.5. save where the Driver will not complete the Qualifying Period during the term of the Assignment, to provide AE Driver with written details of its pay and benefits structures and appraisal processes and any variations of the same.
3.5. In addition, for the purpose of awarding any bonus to which the Driver may be entitled under the ARW, the Client will:
3.5.1. integrate the Driver into its relevant performance appraisal system;
3.5.2. assess the Driver's performance;
3.5.3. provide AE Driver with copies of all documentation relating to any appraisal of the Driver, including without limitation written details of the outcome of any appraisal and the amount of any bonus awarded; and
3.5.4. provide AE Driver with all other assistance AE Driver may request in connection with the assessment of the Driver's performance for the purpose of awarding any bonus.
3.6. The Client will comply with all AE Driver' requests for information and any other requirements to enable AE Driver to comply with the ARW.
3.7. The Client warrants that:
3.7.1. all information and documentation supplied to AE Driver in accordance with clauses 3.4, 3.5 and 3.6 is complete, accurate and up-to-date; and
3.7.2. it will, during the term of the relevant Assignment, immediately inform AE Driver in writing of any subsequent change in any information or documentation provided in accordance with clauses 3.4, 3.5 and 3.6;
3.8. Without prejudice to clauses 14.7 and 14.8, the Client shall inform AE Driver in writing of any:
3.8.1. oral or written complaint the Driver makes to the Client which is or may be a complaint connected with rights under the ARW; and
3.8.2. written request for information relating to the Relevant Terms and Conditions that the Client receives from the Driver as soon as possible but no later than 7 calendar days from the day on which any such oral complaint is made to or written complaint or request is received by the Client and the Client will take such action and give such information and assistance as AE Driver may request, and within any timeframe requested by AE Driver, in order to resolve any such complaint or to provide any such information in a written statement to the Driver within 28 days of the Client's receipt of such a request in accordance with Regulation 16 of the ARW and the Client will provide AE Driver with a copy of any such written statement.
3.9. The Client undertakes that it knows of no reason why it would be detrimental to the interests of the
4. INFORMATION TO BE PROVIDED BY AE DRIVER TO THE CLIENT
4.1. When Introducing a Driver to the Client AE Driver shall inform the Client in writing :of the identity of the Driver, that the Driver has the required experience, training, qualifications and any authorisation required by law or a professional body to work in the Assignment, that the Driver is willing to work; the Charges.
4.2. Where such information is not given in paper form or by electronic means it shall be confirmed by such means by the end of the third business day (excluding Saturday, Sunday and any Public or Bank Holiday) following, save where the Driver is Introduced for an Assignment in the same position as one in which the Driver had previously been supplied within the previous 5 business days and such information has already been given to the Client, unless the Client requests that the information be resubmitted.
5. RECORD OF DRIVER’S WORK
5.1. At the end of each week of an Assignment (or at the end of the Assignment where it is for a period of 1 week or less) the Client shall sign AE Driver' timesheet verifying the number of hours worked by the Driver during that week. Failure by the Client to sign off the timesheet will not absolve the Client from any of its obligations to pay the Charges in respect of the hours worked as claimed by AE Driver.
5.2. 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 Driver because the Client disputes the hours claimed, the Client shall inform AE Driver as soon as is reasonably practicable and in any event within 24 hours and shall co-operate fully and in a timely fashion with AE Driver to enable AE Driver to establish what hours, if any, were worked by the Driver.
6.1. The Client agrees to pay the Charges as notified to and agreed with the Client. The Charges are calculated according to the number of hours worked by the Driver (to the nearest quarter hour but subject to a minimum of 8 hours per day) and comprise the following:
6.1.1. the Driver’s hourly rate of pay;
6.1.2. an amount equal to any paid holiday leave to which the Driver is entitled under the WTR and, where applicable, the ARW and which is accrued during the course of an Assignment;
6.1.3. any other amounts to which the Driver is entitled under the ARW, where applicable;
6.1.4. employer’s National Insurance contributions;
6.1.5. any travel, hotel or other expenses as may have been agreed with the Client or, if there is no such agreement, such expenses as are reasonable; and
6.1.6. AE Driver' commission, which is calculated as a percentage of the Driver’s hourly rate.
6.2. AE Driver reserves the right to vary the Charges agreed with the Client, by giving written notice to the Client:
6.2.1. in order to comply with any additional liability imposed by statute or other legal requirement or entitlement, including but not limited to the ARW; and/or
6.2.2. if there is any variation in the Relevant Terms and Conditions.
6.3. The Charges are invoiced to the Client on a weekly basis and are payable within 30 (thirty) days from date of invoice time being of the essence.
6.4. In addition to the Charges, the Client will pay AE Driver an amount equal to any bonus that the Client awards to the Driver in accordance with clause 3.5 immediately following any such award and AE Driver will pay any such bonus to the Driver. For the avoidance of doubt, the Client will also pay any employer’s National Insurance Contributions and AE Driver' commission on the bonus (calculated using the same percentage rate as that used under clause 6.1.6) in addition to any bonus payable to the Driver.
6.5. The minimum period of a Shift is 8 hours and a Client will be charged for an 8 hour period even if the Driver is required to work less than this during the Shift.
6.6. The Client may cancel a Shift without charge provided that written notice is received by AE Driver at least 8 hours before the start of the Assignment.
6.7. VAT is payable at the applicable rate on the entirety of the Charges.
6.8. AE Driver reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date currently at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment.
6.9. The Client shall not be entitled to invoke any set-off, deductions, withholdings or other similar rights in respect of the Charges or other sums due under this Agreement either in law or equity.
7. AE DRIVER OBLIGATIONS
7.1 AE Driver will use their reasonable endeavours to ensure that the Drivers are fully trained and licenced and will turn up to a Shift in uniform and with a working mobile phone.
7.2 AE Driver assumes responsibility for paying the Driver and where appropriate, for the deduction and payment of National Insurance Contributions and PAYE Income Tax applicable to the Driver pursuant to sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003.
8. TRANSFER FEES
8.1. The Client shall be liable to pay a Transfer Fee if the Client Engages a Driver Introduced by AE Driver other than via AE Driver or introduces the Driver to a third party and such Introduction results in an Engagement of the Driver by the third party other than via AE Driver and where the Driver has been supplied or an Introduction made by AE Driver, such Engagement takes place during the Assignment or within the Relevant Period
8.2. If the Client wishes to Engage the Driver other than via AE Driver without liability to pay a Transfer Fee, the Client may, on giving 13 (THIRTEEN) weeks written notice to AE Driver, engage the Driver for the Period of Extended Hire specified in Schedule 2.
8.3. During such Period of Extended Hire AE Driver shall supply the Driver on the same terms on which s/he has or would have been supplied during the Assignment and in any case on terms no less favourable than those terms which applied immediately before AE Driver received the notice in clause 8.2; and the Client shall continue to pay the Charges set out in clause 6. If AE Driver is unable to supply the Driver 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 Driver on the same terms as the Assignment; but the Driver is Engaged by the Client, the Client shall pay the Transfer Fee, reduced pro-rata to reflect any Charges paid by the Client during any part of the Period of Extended Hire worked by the Driver before being Engaged by the Client. If the Client fails to give notice of its intention to engage the Driver other than via AE Driver before such Engagement commences, the parties agree that the Transfer Fee shall be due in full.
8.4. Where prior to the commencement of the Client's Engagement other than via AE Driver AE Driver and the Client agree that such Engagement will be on the basis of a fixed term of less than 12 months, AE Driver may, in its absolute discretion, reduce the Transfer Fee as calculated in accordance with Schedule 2 pro-rata. Such reduction is subject to the Client Engaging the Driver for the agreed fixed term. Should the Client extend the Driver’s Engagement or re-Engage the Driver within 12 months from the commencement of the initial Engagement AE Driver reserves the right to recover the balance of the Transfer Fee.
8.5. No refund of the Transfer Fee will be paid in the event that the Engagement of the Driver other than via AE Driver by the Client or by a third party to which the Client introduces the Driver terminates or terminates before the end of the fixed term referred to in clause 8.4.
8.6. VAT is payable in addition to any Transfer Fee due.
9. SUITABILITY CHECKS AND INFORMATION TO BE PROVIDED IN SPECIAL SITUATIONS
9.1. Where the Driver is required by law, or any professional body to have any qualifications or authorisations to work on the Assignment, AE Driver will take all reasonably practicable steps to obtain and offer to provide to the Client copies of any relevant qualifications or authorisations of the Driver and such other reasonably practicable steps as are required to confirm that the Driver is suitable for the Assignment. If AE Driver has taken all reasonably practicable steps to obtain the information above and has been unable to do so fully it shall inform the Client of the steps it has taken to obtain this information in any event.
9.2. The Client shall advise AE Driver at the time of instructing AE Driver to supply a Driver whether during the course of the Assignment, the Driver will be required to work with, care for or attend one or more Vulnerable Persons or engage in activity or otherwise be working in a position covered by the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 as applicable.
9.3. The Client shall assist AE Driver by providing any information required to allow AE Driver to comply with its statutory obligations under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 as applicable and to allow AE Driver to select a suitable Driver for the Assignment.
9.4. In particular in the event that the Client removes a Driver from an Assignment in circumstances which would require AE Driver to provide information to the Independent Safeguarding Authority (or the equivalent authority) under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007, the Client will provide sufficient information to AE Driver to allow it to discharge its statutory obligations.
10. UNSUITABILITY OF THE DRIVER
10.1. The Client undertakes to supervise the Driver sufficiently to ensure the Client’s satisfaction with the Driver’s standards of work. If the Client reasonably considers that the services of the Driver are unsatisfactory, the Client may terminate the Assignment either by instructing the Driver to leave the Assignment immediately, or by directing AE Driver to remove the Driver. AE Driver may, in its absolute discretion, in such circumstances, reduce or cancel the Charges for the time worked by that Driver, provided that the Client has notified AE Driver immediately that they have asked the Driver to leave the Assignment or the Assignment terminates:
10.1.1. within 4 hours of the Driver commencing the Assignment where the Assignment is for more than 8 hours; or
10.1.2. within 2 hours for Assignments of 8 hours or less; and provided that notification of the unsuitability of the Driver is confirmed in writing to AE Driver within 48 hours of the termination of the Assignment.
10.2. AE Driver shall notify the Client immediately if it receives or otherwise obtains information which gives AE Driver reasonable grounds to believe that any Driver supplied to the Client is unsuitable for the Assignment and shall be entitled to terminate the Assignment forthwith without prior notice and without liability. Notwithstanding, the Client shall remain liable for all Charges incurred prior to the termination of the Assignment.
10.3. The Client shall notify AE Driver immediately and without delay and in any event within 3 hours if the Driver fails to attend work or has notified the Client that they are unable to attend work for any reason.
11. TERMINATION OF THE ASSIGNMENT
Any of the Client, AE Driver or the Driver may terminate an Assignment at any time (but not during a Shift) without prior notice and without liability EXCEPT in the case of termination by the Client, who shall be liable for any Charges due under clause 6 above and EXCEPT ALSO for any liability already accrued.
12. CONFIDENTIALITY AND DATA PROTECTION
12.1. All information relating to a Driver is confidential and subject to the Data Protection Laws and is provided solely for the purpose of providing work-finding services to the Client. Such information must not be used for any other purpose nor divulged to any third party and the Client undertakes to abide by the provisions of the Data Protection Laws in receiving and processing the data at all times.
12.2. AE Driver undertakes to keep confidential all Relevant Terms and Conditions that the Client discloses to AE Driver and not to use such information except for the purposes of compliance with the ARW (including, for the avoidance of doubt and without limitation, when dealing with any request for information or complaint made by any Driver or any AWR Claim).
12.3. Information relating to AE Driver' business which is capable of being confidential must be kept confidential by the Client and not divulged to any third party, except information which is in the public domain.
13. INTELLECTUAL PROPERTY RIGHTS
All copyright, trademarks, patents and other intellectual property rights deriving from the Assignment shall belong to the Client. Accordingly AE Driver will use its reasonable endeavours (at the cost of the Client) to ensure that the Driver executes all such documents and does all such acts as are reasonable in order to give effect to the Client’s rights pursuant to this clause.
14.1. Whilst reasonable efforts are made by AE Driver to give satisfaction to the Client by ensuring reasonable standards of skill, integrity and reliability from the Driver and to provide the same in accordance with the Assignment details as provided by the Client, no liability is accepted by AE Driver for any Losses arising from or connected with any failure to provide any Driver for all or part of the Assignment or from the negligence, dishonesty, misconduct or lack of skill of the Driver or if the Driver terminates the Assignment for any reason. For the avoidance of doubt, AE Driver does not exclude liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude under law.
14.2. Drivers supplied by AE Driver remain employees of AE Driver pursuant to this Agreement but are deemed to be under the supervision and direction of the Client from the time they report to take up duties and for the duration of the Assignment. The Client agrees to be responsible for all acts, errors or omissions of the Driver during the Assignment, whether wilful, negligent or otherwise and will indemnify AE Driver against all Losses arising therefrom or connected therewith.
14.3. The Client shall advise AE Driver in advance and the Driver at commencement of the Assignment of any special health and safety matters about which AE Driver is required to inform the Driver and about any requirements imposed by law or by any professional body, which are required to be satisfied by the Driver during the Assignment.
14.4. The Client will also comply in all respects with all statutory provisions as are in force from time to time including, for the avoidance of doubt, but not limited to the WTR, Health and Safety At Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999, by-laws, codes of practice and legal requirements to which the Client is ordinarily subject in respect of the Client’s own staff (excluding the matters specifically mentioned in clause 7 above), including in particular the provision of adequate Employer’s and Public Liability Insurance cover for the Driver during all Assignments.
14.5. The Client undertakes not to request the supply of a Driver 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.
14.6. The Client must indemnify and keep indemnified AE Driver against any Losses incurred by AE Driver arising out of any Assignment or arising out of any non-compliance with, and/or as a result of any breach of, this Agreement by the Client.
14.7. The Client must inform AE Driver in writing of any AWR Claim which comes to the notice of the Client as soon possible but no later than 7 calendar days from the day on which any such AWR Claim comes to the notice of the Client.
14.8. If the Driver brings, or threatens to bring, any AWR Claim, the Client undertakes to take such action and give such information and assistance as AE Driver may request, and within any timeframe requested by AE Driver and at the Client’s own cost, to avoid, dispute, resist, mitigate, compromise or defend any such AWR Claim and to appeal against any judgment given in respect thereof.
14.9 AE Driver is willing to discuss with the Client the variation of any provision in these terms and conditions which excludes or limits their liability subject to them being able to insure any additional liability and provided that the cost of such insurance is payable by the Client.
All notices which are required to be given in accordance with this Agreement shall be in writing and may be delivered personally or by first class prepaid post to the registered office of the party upon whom the notice is to be served or any other address that the party has notified the other party in writing, by email or facsimile transmission. Any such notice shall be deemed to have been served: if by hand when delivered, if by first class post 48 hours following posting and if by email or facsimile transmission, when that email or facsimile is sent.
If any of the provisions of this Agreement shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining terms, which shall continue to be valid to the fullest extent permitted by applicable laws.
17. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of England and Wales and are subject to the exclusive jurisdiction of the Courts of England and Wales.
Signed for and on behalf of the Client
I confirm I am authorised to sign this Agreement for and on behalf of the Client.
SCHEDULE 1: "COMPARABLE EMPLOYEE", "QUALIFYING PERIOD" AND "TEMPORARY WORK AGENCY"
"Comparable Employee" means as defined in Regulation 5(4) of the ARW being an employee of the Client who:
(a) works for and under the supervision of the Client and is engaged in the same or broadly similar work as the Driver having regard, where relevant, to whether the employee and the Driver have a similar level of qualification and skill; and
(b) works or is based at the same establishment as the Driver or, where there is no comparable employee working or based at that establishment who satisfies the requirements of (a) above, works or is based at a different establishment and satisfies those requirements.
For the purpose of the definition of "Qualifying Period" in clause 1.1 of this Agreement, when calculating whether any weeks completed with the
Client count as continuous towards the Qualifying Period, where:
(a) the Driver has started working during an assignment and there is a break, either between assignments or during an assignment, when the Driver is not working;
(b) the break is:
(i) for any reason and not more than six Weeks;
(ii) wholly due to the fact that the Driver is incapable of working in consequence of sickness or injury and the break is 28 Weeks or less; paragraph (iii) does not apply; and, if required to do so by AE Driver, the Driver has provided such written medical evidence as may reasonably be required;
(iii) related to pregnancy, childbirth or maternity and is at a time in a protected period, being a period beginning at the start of the pregnancy and ending at the end of the 26 weeks beginning with childbirth (being the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy) or, if earlier, when the Driver returns to work;
(iv) wholly for the purpose of taking time off or leave, whether statutory or contractual, to which the Driver is otherwise entitled which is:
i. ordinary, compulsory or additional maternity leave;
ii. ordinary or additional adoption leave;
iii. ordinary or additional paternity leave;
iv. time off or other leave not listed in paragraphs (iv)i, ii, or iii above; or
v. for more than one of the reasons listed in paragraphs (iv)i, ii, iii to iv above;
(v) wholly due to the fact that the Driver is required to attend at any place in pursuance to being summoned for service as a juror and the break is 28 Weeks or less;
(vi) wholly due to a temporary cessation in the Client's requirement for any worker to be present at the establishment and work in a particular role for a pre-determined period of time according to the established custom and practices of the Client;
(vii) wholly due to a strike, lock-out or other industrial action at the Client's establishment; or
(viii) wholly due to more than one of the reasons listed in paragraphs (ii), (iii), (iv), (v), (vi) or (vii); and
(c) the Driver returns to work in the same role with the Client, any weeks during which the Driver worked for the Client before the break shall be carried forward and treated as counting towards the Qualifying Period with any weeks during which the Driver works for the Client after the break. In addition, when calculating the number of weeks during which the Driver has worked, where the Driver has started working in a role during an Assignment and is unable to continue working for a reason described in paragraph (b)(iii) or (b)(iv)i., ii, or iii., for the period that is covered by one or more such reasons, the Driver shall be deemed to be working in that role with the Client for the original intended duration or likely duration of the relevant Assignment, whichever is the longer. For the avoidance of doubt, time spent by the Driver working during an assignment before 1 October 2011 does not count for the purposes of the definition of "Qualifying Period".
"Temporary Work Agency" means as defined in Regulation 4 of the ARW being a person engaged in the economic activity, public or private, whether or not operating for profit, and whether or not carrying on such activity in conjunction with others, of:
(a) supplying individuals to work temporarily for and under the supervision and direction of Clients; or
(b) paying for, or receiving or forwarding payment for, the services of individuals who are supplied to work temporarily for and under the supervision and direction of Clients.
Notwithstanding paragraph (b) of this definition a person is not a Temporary Work Agency if the person is engaged in the economic activity of paying for, or receiving or forwarding payments for, the services of individuals regardless of whether the individuals are supplied to work for Clients. For the purpose of this definition, a "Client" means a person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person.
SCHEDULE 2: TRANSFER FEES
The Transfer Fee referred to in clause 8 shall be:
If the Driver is Employed by the Client within 8 weeks of an Assignment - £2000 and/or
If the Driver is Employed by the Client within 12 months of AE Driver Training - £5000
If the Diver is Employed by the Client more than 12 months or more after of AE Driver Training - £3000