1 Definitions and Interpretation
1.1 For theseterms the following definitions apply:
“Actual Rate of Pay” means the rate of pay that is due to the Agency Worker (before statutory deductions and any deductions that the Agency Worker has specifically agreed can be made) in respect of any Assignment as set out in the Assignment Details Form prior to completion of the Qualifying Period.
“Agency Worker” means the individual who is Introduced or supplied to the Hirer to fill a vacancy or cover a short term staffing requirement having been sourced through the StuTemp website.
“Agency Worker Rating” means the rating given to Hirers after an Agency Worker has completed an Assignment.
“Assignment” means the Services to be provided by the Agency Worker to the Hirer for a period of time.
“Assignment Details Form” means written confirmation of the details agreed with the Hirer prior to commencement of each Assignment containing all of the relevant particulars of the Assignment.
“AWR 2010” means the Agency Workers Regulations 2010.
“Charges” means the hourly charges of StuTemp calculated in accordance with clause 6.1 and as may be varied from time to time in accordance with these Terms.
“Comparable Employee” has the same meaning as in the AWR 2010.
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
“Data Protection Laws” means: means the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018 and, in each case, all legislation and regulations enacted in the UK in respect of the protection and transfer of personal data.
“Engagement” means the engagement (including the Agency Worker’s acceptance of the Hirer’s offer), employment or use of the Agency Worker by the Hirer or any third party to whom the Agency Worker has been Introduced by the Hirer, directly or indirectly, on a permanent or temporary basis, whether under a contract of service or for services; under an agency, licence, franchise or partnership agreement; or any other engagement; or through a limited company of which the Agency Worker is an officer, employee or other representative; and “Engage”, “Engages” and “Engaged” shall be construed accordingly.
“Hirer” means the person, corporate body and other entity making use of the functionality of StuTemp’s website and online platform, and being clients looking to source suitable staff to meet short term and/or permanent staffing requirements.
“Introduction” means (i) the passing to the Hirer of a curriculum vitae or information that identifies the Agency Worker; or (ii) the Hirer’s interview of the Agency Worker (in person or by telephone or by any other means), following the Hirer’s instruction to StuTemp to supply a temporary worker; or (iii) the supply of the Agency Worker; and, in any case, which leads to an Engagement of the temporary worker or the Agency Worker; and “Introduced” and “Introducing” shall be construed accordingly. In so far as the person engaged is a member of StuTemp’ own staff an Introduction shall be deemed to have occurred on any and each communication whether direct or indirect between the staff member and the Hirer.
“Losses” means all direct losses, liabilities, damages, costs, expenses (excluding any consequential loss, economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands.
“Multiplier” means the mark up charged to the Hirer as set out in clause 6.2.
“Other Qualifying Period Payment” means any remuneration payable to the Agency Worker (other than the Qualifying Period Rate of Pay), which is not excluded by virtue of regulation 6 of the AWR 2010, such as any overtime, shift premium, commission or any bonus, incentive or rewards which are directly attributable to the amount or quality of work done by an Agency Worker and are not linked to a financial participation scheme (as defined by the AWR 2010).
“Period of Extended Hire” means any additional period that the Hirer wishes the Agency Worker to be supplied for beyond the duration of the original Assignment or series of Assignments as an alternative to paying a Transfer Fee.
“Qualifying Period” means 12 continuous calendar weeks, as defined in regulation 7 of the AWR 2010, subject always to regulations 8 and 9 of the AWR 2010.
“Qualifying Period Rate of Pay” means the rate of pay that will be paid to the Agency Worker (before statutory deductions and any deductions that the Agency Worker has specifically agreed can be made) on completion of the Qualifying Period, if this rate is higher than the Actual Rate of Pay.
“Relevant Period“ shall have the meaning set out in regulation 10(5) and (6) of the Conduct Regulations.
“Relevant Terms and Conditions“ means the relevant terms and conditions as defined in regulation 6 of the AWR 2010 that apply once the Agency Worker has completed the Qualifying Period.
“Services” means the services specified in the relevant Assignment Details Form and provided in accordance with these Terms.
“StuTemp” means StuTemp Ltd with registered office at 13 Hampton Court Avenue, KT8 0BG.
“Timesheet” means the part of the website where the Agency Worker canconfirm or dispute the hours of the Assignment; and
“Transfer Fee” means £199 (plus any VAT that is due at the applicable rate from time to time) per Agency Worker.
“WTR” means the Working Time Regulations 1998.
2 The StuTemp and Hirer Contract
2.1 StuTemp will provide the Services (as set out in the Assignment Details Form) on the terms and conditions set out in these Terms. The Hirer acknowledges that StuTemp is not an agent or partner or employer of the Agency Worker but engages the services of the Agency Worker through a contract for services / record of employment from a third party (CC, “Cool Company”).
2.2 These Terms (and any documents referred in these Terms) are the entire agreement between StuTemp and the Hirer and shall govern all Assignments between StuTemp and the Hirer. These Terms overrule over any terms of business put forward by the Hirer. No variation to these Terms shall be valid unless the details are agreed between the StuTemp and the Hirer and are set out in writing.
2.3 StuTemp shall act as an employment business (as defined in Section 13(3) of the Employment Agencies Act 1973 when Introducing Agency Workers for Assignments with the Hirer.
3 Hirer Obligations
3.1 To enable StuTemp to comply with the Conduct Regulations, and to give Agency Workers information relating to potential Assignments sufficient so they can decide if they want to work, the Hirer must provide StuTemp details of each job vacancy posting, including:
(c) the position which the Hirer seeks to fill, including:
(iii) the hours during which the Agency Worker would be required to work; and
(iv) any risks to health and safety known to the Hirer and what steps the Hirer has taken to prevent or control such risks.
along with any other details requested by StuTemp.
3.2 The Hirer understands the information provided about Assignments will be provided toAgency Workers through StuTemp’swebsite. The Hirer also understands that StuTemp is not involved in the Hirer’s selection of Agency Workers for an Assignment.
3.3 The Hirer warrants that:
3.4 The Hirer confirms that it knows of no reason why it would be detrimental to the interests of the Agency Worker for the Agency Worker to fill the Assignment.
3.5 The Hirer will provide such information and assistance as required by StuTemp to ensure that it complies with its duties under the WTR by giving all relevant information about the Assignment requested by StuTemp. The Hirer will not do anything or omit to do anything that would put StuTemp in breach of its WTR obligations. The Hirer shall indemnify StuTemp for any Losses incurred by StuTemp in respect of any breach of this clause 3.5 of the Terms. If the Hirer requires the services of an Agency Worker for more than 48 hours in any week during the course of an Assignment, the Hirer must notify StuTemp 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 Hirer requires the Agency Worker to work in excess of 48 Hours.
3.6 The Hirer 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 AWR 2010.
3.7 To enable StuTemp to comply with its obligations under the AWR 2010, the Hirer undertakes as soon as possible prior to the commencement of each Assignment and during each assignment (as appropriate) and at any time at StuTemp’ request:
(c) to inform StuTemp if, since 1 October 2011, the Agency Worker has prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment:
(iii) worked in more than two roles during an assignment with the Hirer and on at least two occasions worked in a role that was not the same role as the previous role.
(iii) if the Relevant Terms and Conditions provided are those of a Comparable Employee, provide StuTemp with a written explanation of the basis on which the Hirer considers that the relevant individual is a Comparable Employee; and
(iv) inform StuTemp 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
3.8 In addition, for the purpose of awarding any bonus to which the Agency Worker may be entitled under the AWR 2010, the Hirer will:
(c) provide StuTemp with copies of all documentation relating to any appraisal of the Agency Worker, including without limitation written details of the outcome of any appraisal and the amount of any bonus awarded; and
(d) provide StuTemp with all other assistance StuTemp may request in connection with the assessment of the Agency Worker’s performance for the purpose of awarding any bonus.
3.9 In relation to any Agency Worker who has completed the Qualifying Period and who is pregnant, the Hirer agrees as follows:
(c) that it shall not terminate the Assignment on the grounds of the Agency Worker’s pregnancy (save in the circumstances set out below).
If, having carried out a risk assessment pursuant to sub-clause b) above, it is not possible to remove any risks that have been identified, StuTemp will remove the Agency Worker from the Assignment and the Hirer shall fully indemnify StuTemp in respect of any sums that may be payable to the Agency Worker pursuant to the AWR 2010 and/or the Employment Rights Act 1996 by virtue of the termination of such Assignment.
3.10 The Hirer will comply with any further requests by StuTempfor information in relation to the AWR 2010.
3.11 Without prejudice to clauses 11.7 and 11.8, the Hirer shall inform StuTemp in writing of any:
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 Hirer. The Hirer will take such action and give such information and assistance as StuTemp may request, and within any timeframe requested by StuTemp, in order to resolve any such complaint, and shall provide any such information in a written statement to the Agency Worker within 28 days of the Hirer’s receipt of such a request in accordance with Regulation 16 of the AWR 2010 and the Hirer will provide StuTemp with a copy of any such written statement.
3.12 The Hirer will give anAgency Worker Rating through the website of the Agency Worker based on a range of factors. The Hirer ensures any Agency Worker Ratings are reflective, correct and not misleading. The Hirer understands that after each Assignment the Agency Worker will give a rating via the website of the Hirer based on a range of factors. Agency Workers must make sure each rating will be reflective, correct and not misleading.
3.13 If an Agency Worker receives Agency Worker Rating they believe is too low, or is not reflective, is incorrect or misleading, StuTemp will review the Agency Worker Rating provided and decide whether the Agency Worker Rating is justified.
4 Information to be given to Hirer from StuTemp
4.1 When Introducing an Agency Worker to the Hirer, StuTemp shall inform the Hirer:
(c) that the Agency Worker is willing to work.
(d) of the Charges.
4.2 Where for any reason the information above 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 Agency Worker is Introduced for an Assignment in the same position as one in which the Agency Worker had previously been supplied within the previous 5 business days and such information has already been given to the Hirer, unless the Hirer requests that the information be resubmitted.
5.1 The Hire shall complete the Timesheet in respect of all hours worked for each Assignment, which confirms the hours worked in relation to each Assignment or alternatively the Hirer shall pick another option on the website to change hours.
5.2 If there is dispute in hours, StuTemp will investigate the matter (in a timely manner) and decide in its absolute discretion the correct amount of hours. The Hirer shall cooperate fully with any such investigation.
5.3 The Hirer must input hours that are true and reflective of hours worked by any Agency Worker in respect of any Assignment.
6.1 The Hirer must pay the Charges as agreed with the Hirer.
6.2 The Charges are calculated according to the number of hours worked by the Agency Worker (to the nearest quarter hour) and comprise the following:
(b) an amount equal to any paid holiday leave to which the Agency Worker is entitled under the WTR and, where applicable, the AWR 2010, which is accrued during the course of an Assignment;
(c) any other amounts to which the Agency Worker is entitled under the AWR 2010, where applicable, including the Other Qualifying Period Payment;
(d) Employer’s National Insurance contributions;
(e) any travel, hotel or other expenses as may have been agreed with the Hirer or, if there is no such agreement, such expenses as are reasonable; and
multiplied by a factor (the Multiplier). The Multiplier is stated before listing the Assignment on the website and will be confirmed once the Hirer has made an offer to any Agency Worker.
6.3 StuTemp reserves the right to vary the Charges agreed with the Hirer, by giving written notice to the Hirer:
(b) if there is any variation in the Relevant Terms and Conditions.
6.4 In addition to the Charges, the Hirer will pay StuTemp an amount equal to any bonus the Hirer awards to the Agency Worker in accordance with clause 3.8 immediately following any such award and StuTemp will pay any such bonus to the Agency Worker. For the avoidance of doubt, the Hirer will also pay an Employer’s National Insurance Contribution and the Multiplier will be calculated on the bonus in addition to any bonus payable to the Agency Worker.
6.5 StuTemp will invoice the Charges to the Hirer after each shift of the Assignment has been completed. The Hirer will pay the Charges within 14 days of the date of the invoice. The Hirer agrees that in the event of non-payment of the invoice by the Hirer within 14 days of the date of the invoice, the Hirer will indemnify StuTemp and keep it indemnified in respect of all Losses incurred by the Hirer in respect of the recovery of the money due in respect of the invoice, whether they are incurred before or after judgement.
6.6 The invoice will be sent out via StuTemp using Stripe, and the Hirer will be redirected to pay StuTemp from the invoice.
6.7 If the Hirer has multiple roles filled by throughout the week then an invoice will be sent out at the end of the week for all agency worker payments.
6.8 VAT is payable at the applicable rate on the entirety of the Charges.
6.9 StuTemp has the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts not paid from after the invoice due date at the rate of 8% per annum above the base rate from time to time of the Bank of England, which shall accrue on a daily basis from the due date until the date of payment.
6.10 No refunds are paid by StuTemp, unless agreed in advance between StuTemp and the Hirer.
6.11 The Hirer is not allowed to make deductions, withholdings or other similar activities from any payments due to StuTemp.
7 Agency Worker Payment
7.1 StuTemp takes responsibility for paying the Agency Worker
8 Agency Worker Unsuitability
8.1 The Hirer must supervise and direct the Agency Worker to make sure the Hirer is satisfied with the Agency Worker’s standard of work. If the Hirer is unsatisfied, they have the right to end the Assignment immediately and instructing the Agency Worker to leave the Assignment immediately, or by directing StuTemp to remove the Agency Worker. In such circumstances the Hirer shallonly pay for the Charges for the hours worked.
8.2 The Hirer must notify StuTemp immediately, within the same working day if the Agency Worker.
(b) doesnot turn up to the Assignment.
8.3 On receipt of the notice from the Hirer by StuTempthat the Agency Worker did not turn up to the Assignment, StuTemp will find a suitable Agency Worker to fill the place of the Agency Worker who did not turn up. If the Agency Worker does not turn up for any Assignment, this does not impact the Hirer’s obligation to pay the Charges for any hours when Agency Worker did turn up orcarried out any part of the Assignment for the Hirer or in respect of any other Agency Workers.
8.4 StuTemp shall notify the Hirer immediately if it receives or otherwise obtains information which gives StuTemp reasonable grounds to believe that the Agency Worker supplied to the Hirer is unsuitable for the Assignment and shall be entitled to terminate the Assignment forthwith without prior notice and without liability. Notwithstanding, the Hirer shall remain liable for all Charges incurred prior to the termination of the Assignment.
9 Protection of Data and Confidentiality
9.1 All information the Agency Worker provides is protected under Data Protection Laws and must not be used by the Hirer for any other reasons than to decide if to select the Agency Worker to fill their vacancy. The Hirer must not pass on information to third parties. The Hirer understands and accepts the Website, Use, Privacy and Cookies Policy contained on StuTemp’s website.
9.2 StuTemp undertakes to keep confidential all Relevant Terms and Conditions that the Hirer discloses to StuTemp and not to use such information except for the purpose of compliance with the AWR 2010 (including, for the avoidance of doubt and without limitation, when dealing with any request for information or complaint made by any Agency Worker or any claim in respect of the AWR 2010).
9.3 Information relating to StuTemp’ business that is capable of being confidential must be kept confidential by StuTemp and not divulged to any third party, except for information that is in the public domain.
10 Intellectual Property Rights and Licence
10.1 All copyright, trademarks, patents and other intellectual property rights deriving from the Assignment shall belong to the Hirer. AccordinglyStuTemp shall use its reasonable endeavours to ensure that the Agency Worker shall execute all such documents and do all such acts in order to give effect to the Hirer’s rights pursuant to this clause.
11.1 While StuTemp attempts to ensure agency workers standard of work is satisfactory, StuTemp accepts no liability for any loss, expense, damage or delay arising from any situations where the agency worker does not turn up, or due to the dishonesty, wrong conduct, or lack of skill, of the Agency Worker or if the assignment is terminated by the agency worker. For the avoidance of doubt, StuTemp 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
11.2 Agency Workers supplied by StuTemp according to these Terms are engaged under contracts for services. Agency workers are not employees of StuTemp and are deemed to be under the supervision as well as direction of the Hirer from the time they get to the Assignment location and for the duration of the Assignment. The Hirer agrees to be responsible for all actions of the Agency Worker’s acts, whether wilful, negligent or otherwise as if the Agency Worker was on the Hirer’s payroll.
11.3 The Hirer shall advise StuTemp of any special health and safety matters about which StuTemp is required to inform the Agency Worker and about any requirements imposed by law or by any professional body, which must be satisfied if the Agency Worker is to fill the Assignment.
11.4 The Hirer 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 Working Time Regulations, Health and Safety at work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999 (as amended), by-laws, codes of practice and legal requirements to which the Hirer is ordinarily subject in respect of the Hirer’s own staff (excluding the matters specifically mentioned in clause 7 above), including in particular the provisions of adequate Employer’s and Public Liability Insurance cover for the Agency Worker during all Assignments.
11.5 The Hirer undertakes not to request the supply of an Agency 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 Hirer to perform the duties of a person on strike or taking official industrial action.
11.6 The Hirer shall compensate StuTemp against any Losses incurred by StuTemp arising out of:
(c) theHirer’s breach of these terms and conditions by the Hirer.
11.7 The Hirer shall inform StuTemp in writing of any AWR Claim which comes to the notice of the Hirer as soon as possible but no later than 7 calendar days from the day on which any such AWR Claim comes to the notice of the Hirer.
11.8 If the Agency Worker brings, or threatens to bring any AWR Claim, the Hirer undertakes to take such action and give such information and assistance as StuTemp may request, and within any timeframe requested by StuTemp and the Hirer’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.
12 Transfer Fees
12.1 The Hirer shall be liable to pay a Transfer Fee if the Hirer Engages an Agency Worker Introduced by StuTemp, other than via StuTemp, or Introduces the Agency Worker to a third party and such Introduction results in an Engagement of the Agency Worker by the third party, other than via StuTemp and:
12.2 If the Hirer wishes to engage the Agency Worker other than via StuTemp without liability to pay a Transfer Fee, the Hirer may, on giving one week’s written notice to StuTemp, engage the Agency Worker for the Period of Extended Hire which shall be 80hours.
12.3 During such Period of Extended hire, StuTemp shall supply the Agency Worker on the same terms on which the Agency Worker 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 StuTemp received the notice in clause 12.2; and the Hirer shall continue to pay the Charges set out in clause 6. If StuTemp is unable to the supply the Agency Worker for any reason outside its control for the whole or any part of the Period of Extended Hire; or the Hirer does not wish to hire the Agency Worker on the same terms as the Assignment; but the Agency Worker is Engaged by Hirer, the Hirer shall pay the Transfer Fee, reduced pro-rata to reflect any Charges paid by the Hirer during any part of the Period of Extended Hire worked by the Agency Worker before being Engaged by the Hirer. If the Hirer fails to give notice of its intention to Engage the Agency Worker other than via StuTemp before such Engagement commences, the parties agree that the Transfer Fee shall be due in full.
12.4 No refund of the Transfer Fee will be paid in the event that the Engagement of the Agency Worker (other than via StuTemp) by the Hirer or by a third party to which the Hirer Introduces the Agency Worker terminates.
12.5 VAT is payable in addition to any Transfer Fee due.
If any of the provisions of these Terms shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining Terms, which shall continue to be valid to the fullest extent permitted by applicable laws.
14 Governing Law And Jurisdiction
These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales.