MOBILE EMPLOYMENT LIMITED TERMS OF ENGAGEMENT WITH WORKER
MOBILE EMPLOYMENT LIMITED which is a company incorporated and registered in England and Wales with company number 10377195 whose registered office is at 28 Barnard Close, Rubery, Birmingham, B45 9SZ, United Kingdom (Employment Business)
Temporary Worker confirms terms herein via acceptance of these Terms of Engagement on any electronic platform.
1.1. The Employment Business provides an internet-based Temp in Care platform and mobile application for the purpose of introducing and supplying temporary workers to clients to undertake temporary work assignments.
1.2. This Agreement sets out the terms relating to the use of the Temp in Care platform and related services by the Temporary Worker and the provision of temporary services by the Temporary Worker to clients.
2.1. The definitions and rules of interpretation in this clause apply to this agreement.
Assignment: the provision of temporary services by the Temporary Worker to a Client, as more particularly described in clause 5.
AWR 2010: the Agency Workers Regulations 2010 (SI 2010/93).
Business Day: a day other than a Saturday, Sunday or public holiday when banks in London are open for business.
Calendar Week: shall have the meaning in regulation 7(4) of the AWR 2010.
Client: the person, firm, partnership, company or Group company (as the case may be) to whom the Temporary Worker is Introduced or supplied.
Client Terms: the terms and conditions which a Client must agree to in order to register with the Employment Business and engage temporary workers registered with the Employment Business.
Client Rating: shall have the meaning given to it in clause 5.7 below.
Conduct Regulations 2003: the Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319).
Confidential Information: information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located including information made available on the Platform) relating to the business, customers, products, affairs and finances of the Client, the Employment Business or any Group company for the time being confidential to the Client, the Employment Business or any Group company and trade secrets including, without limitation, technical data and know-how relating to the business of the Client or the Employment Business or of any Group company or any of its or their suppliers, customers, agents, distributors, shareholders, management or business contacts, including (but not limited to) information that the Temporary Worker creates, develops, receives or obtains in connection with the Assignment, whether or not such information (if in anything other than oral form) is marked confidential, and including any information which is notified to the Temporary Worker such as worker records, deployment schedules, wage information, etc.
Demand: any action, award, claim or other legal recourse, complaint, cost, debt, demand, expense, fine, liability, loss, outgoing, penalty or proceeding.
Employment Business Address: the address set out in above, or such other address as is notified to the Temporary Worker for the applicable purpose from time to time.
Engage: the employment of a Temporary Worker or the engagement directly or indirectly through any employment business other than through the Employment Business (whether for a definite or indefinite period) of a Temporary Worker as a direct result of any Introduction or Assignment to the Client and the term Engaged shall be construed accordingly.
Group: in relation to a company, that company, each and any subsidiary or holding company from time to time of that company, and each and any subsidiary from time to time of a holding company of that company.
Holding company: has the meaning given in clause 2.7.
HR Team: the HR Team of the Employment Business from time to time, contactable via the email address email@example.com
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
Introduce: the provision to the Client of information by the Employment Business (including, for the avoidance of doubt, Worker Information made available on the Platform) which identifies the Temporary Worker and Introduction and Introduced shall be construed accordingly.
Introduction Fee: a fee payable by the Client to the Employment Business in the circumstances set out in clause 6.
Minimum Rate: the minimum rate of pay per hour (before any deductions that the Employment Business is required to make by law and any deductions which the Temporary Worker may agree to from time to time) that the Temporary Worker will accept in respect of Assignments.
Other Qualifying Period Payment: any remuneration payable to the Temporary 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 a Temporary Worker and are not linked to a financial participation scheme (as defined by the AWR 2010).
Platform: the internet-based Temp in Care platform and mobile application operated by the Employment Business via which Clients will provide details of available Assignments and the Worker Information will be made available to Clients.
Public Information: means information relating to the Temporary Worker which may be made available to Registered Clients only via the Platform:
(i) the Temporary Worker's name
(ii) Temporary Worker's sex
(iii) Temporary Worker's age
(iv) the Temporary Worker's address
(v) the Temporary Worker's availability
(vi) details of the Temporary Worker's experience, training, qualifications, skills and authorisations
(vii) the Worker Written, Video or Audio profile (if any)
Qualifying Period: 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: the rate of pay that will be paid to the Temporary Worker on completion of the Qualifying Period, if this rate is higher than the Rate of Pay. Such rate will be paid for each hour worked during an Assignment (to the nearest quarter hour) within the timescale set out in clause 8, subject to any deductions that the Employment Business is required to make by law and to any deductions that the Temporary Worker has specifically agreed can be made.
Rate of Pay: the rate of pay that will be paid to the Temporary Worker prior to completion of the Qualifying Period. Such rate will be paid for each hour worked during an Assignment (to the nearest quarter hour) within the timescale set out in clause 8, subject to any deductions that the Employment Business is required to make by law and to any deductions which the Temporary Worker has specifically agreed can be made.
Relevant Period: shall have the meaning set out in regulation 10(5) and (6) of the Conduct Regulations 2003.
Relevant Terms and Conditions: the relevant terms and conditions as defined in regulation 6 of the AWR 2010 that apply once the Temporary Worker has completed the Qualifying Period.
Required Assignment Information: shall have the meaning set out at clause 5.
Service: the service provided by the Platform to facilitate Temporary Workers in finding temporary work placements
Subsidiary: has the meaning given in clause 2.4.
Temporary Worker: a worker Introduced and supplied by the Employment Business to the Client to provide services to the Client not as an employee of the Client, who is deemed to be an agency worker for the purposes of regulation 3 of the AWR 2010.
Worker Information: means any of the following information:
(i) the Temporary Worker's identity, address, date of birth, ethnicity and location
(ii) the Minimum Rate
(iii) details of the Temporary Worker's Enhanced DBS check
(iv) details of the Temporary Worker's experience, training, qualifications, skills and authorisations
(v) such other information relevant to their suitability for Assignments, as the Employment Business shall require the Temporary Worker to provide
(vi) the Worker Written, Video or Audio statements including curriculum vitae
(vii) the Worker Rating where relevant
(viii) the Workers’ past work references, education references and/ or character references
(ix) The Workers’ National Insurance, Bank details, student loan and benefits status
Worker Rating: shall have the meaning given to it in Clause 5.7 below.
Worker Video or Audio: means the video or Audio-based content provided by the Temporary Worker in connection with their application to become a Temporary Worker.
WTR 1998: the Working Time Regulations 1998 (SI 1988/1833).
2.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
2.3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2.4. A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee) by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
2.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2.6. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
2.7. A reference to writing or written includes (except where the context requires otherwise) fax and e-mail.
2.8. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.9. A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
2.10. References to clauses are to the clauses of this agreement.
2.11. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
3. The Agreement
3.1. These terms set out the entire agreement between the Employment Business and the Temporary Worker for the supply of services to the Client by the Temporary Worker, and shall govern all Assignments undertaken by the Temporary Worker.
3.2. For the avoidance of doubt, this agreement constitutes a contract for services and not a contract of employment between the Employment Business and the Temporary Worker or the Temporary Worker and the Client.
3.3. For the purposes of the Conduct Regulations 2003, the Employment Business acts as an Employment Business in relation to the Introduction and supply of the Temporary Worker to the Client.
4. The Platform
4.1. Details of available Assignments and Worker Information will be made available on the Platform by the Employment Business. The Platform will be accessed by Clients and Temporary Workers for the purpose of facilitating Temporary Workers in finding work and Clients in finding Temporary Workers to undertake Assignments. Any offer of an Assignment to a Temporary Worker will be made and accepted via the Platform.
5.1. The Employment Business shall not be obliged to offer an Assignment to the Temporary Worker (and the Employment Business shall not be obliged to procure that any Client makes any such offer) and the Temporary Worker shall not be obliged to accept any Assignment offered by any Client or the Employment Business.
5.2. The Temporary Worker acknowledges that the nature of temporary work means that there may be periods when no suitable work is available. The Temporary Worker agrees that suitability of any Assignment shall be determined solely by the Client and that the Employment Business shall incur no liability to the Temporary Worker should the Temporary Worker not be offered Assignments of the type of work for which the Temporary Worker may be qualified and experienced, or any other work.
5.3. The Temporary Worker agrees to provide the Worker Information (save for the Worker Rating which will be provided by the Client under the terms of clause 5.7) to the Employment Business. The Temporary Worker acknowledges that the Worker Information shall be visible to Clients on the Platform and that Clients may use the Worker Information, and such other information as they consider appropriate, to determine whether to offer an available Assignment to the Temporary Worker.
5.4. No Assignments shall be offered to the Temporary Worker until the Worker Information has been provided to the Employment Business in accordance with clause 5.3.
5.5. Due to the nature and operation of the Platform, the Temporary Worker acknowledges that:
5.5.1. Clients will provide details of available Assignments via the Platform and it is the responsibility of the Temporary Worker to access the Platform to look for Assignments;
5.5.2. Offer and acceptance of Assignments will take place via the Platform only;
5.5.3. The suitability of the Temporary Worker for any available Assignment will be assessed by the Client;
5.5.4. where an available Assignment is offered to the Temporary Worker it may also be offered to other Temporary Workers also registered on the Platform at the same time;
5.5.5. acceptance of an Assignment by the Temporary Worker will be on a first come first served basis via the Platform. A Temporary Worker who is offered and accepts an Assignment shall undertake that Assignment and the Assignment will no longer be available for other Temporary Workers to accept;
5.5.6. until such time as an Assignment has been accepted by the Temporary Worker or another temporary worker, it may be withdrawn from the Platform or varied without notice at any time.
5.6. Where a Client provides details of an available Assignment via the Platform, the Employment Business shall ensure that the Client shall provide, via the Platform, the following information (the Required Assignment Information will need to be completed to post an Assignment):
5.6.1. the identity of the Client, and if applicable the nature of its business;
5.6.2. the date the Assignment is to commence and the duration or likely duration of the Assignment;
5.6.3. the position which the Client seeks to fill, including the type of work the Temporary Worker in that position would be required to do, who the Temporary Worker would report to, the location at which, and the hours during which, the Temporary Worker would be required to work;
5.6.4. the Rate of Pay and any expenses payable by or to the Temporary Worker;
5.6.5. any risks to health and safety known to the Client in relation to the Assignment and the steps the Client has taken to prevent or control such risks; and
5.6.6. the experience, training, qualifications, skills and any authorisation which the Client considers are necessary or which are required by law or a professional body for the Temporary Worker to possess in order to undertake the Assignment.
5.7. The Temporary Worker acknowledges that:
5.7.1. at the end of an Assignment, the Client shall be required to provide to the Employment Business a rating of the Temporary Worker's performance and conduct in connection with that Assignment;
5.7.2. such rating shall be aggregated with other such ratings of the Temporary Worker to provide an average rating (the Worker Rating);
5.7.3. the Worker Rating shall become part of the Worker Information which shall be provided to Clients and visible on the Platform;
5.7.4. at the end of the Assignment, the Temporary Worker shall be required to provide a rating of the Client to whom such time sheet relates. This rating shall be aggregated with other such ratings of the Client to provide an average rating in respect of the Client (the Client Rating) which shall be used for such purposes as the Employment Business determines in its absolute discretion; and
5.7.5. any ratings provided by the Temporary Worker in respect of Clients shall accurately and fairly reflect the overall experience of the Temporary Worker in relation to the Assignment in question. The Temporary Worker also acknowledges that the Employment Business may contact them from time to time to discuss the reason(s) for their ratings (in particular ratings that are inconsistent with other ratings making up the Client Rating for a particular Client) and the Temporary Worker agrees to co-operate fully with the Employment Business in that event.
5.8. If the Temporary Worker has completed the Qualifying Period on the start date of the relevant Assignment or completes the Qualifying Period during the relevant Assignment, the Temporary Worker will be informed of the Qualifying Period Rate of Pay if different from the Rate of Pay, together with the Other Qualifying Period Payments and the other Relevant Terms and Conditions to which the Temporary Worker is now entitled under the AWR 2010.
5.9. If the Temporary Worker considers that they have not received the Relevant Terms and Conditions on completion of the Qualifying Period, the Temporary Worker may raise this in writing with the Employment Business, by email sent to info@TempinCare.co.uk with a minimum of 7 days’ notice, setting out as fully as possible the basis of their concerns. The Employment Business shall, within 28 days of receiving such request, provide the Temporary Worker with a written statement setting out:
5.9.1. relevant information relating to the basic work and employment conditions of the workers of the Client;
5.9.2. the factors that the Employment Business considered when determining such basic work and employment conditions; and
5.9.3. where the Employment Business seeks to rely on the defence in regulation 5(3) of the AWR 2010, relevant information which:
(a) explains the basis on which it is considered that an individual is a comparable employee; and
(b) describes the basic work and employment conditions which apply to that employee.
6. Temporary to permanent
6.1. The Temporary Worker acknowledges that the Employment Business will be entitled to charge the Client the Introduction Fee where:
6.1.1. the Client Engages the Temporary Worker within the Relevant Period; or
6.1.2. the Client introduces the Temporary Worker to a third party (other than another employment business) who subsequently Engages the Temporary Worker within the Relevant Period.
6.2. The Introduction Fee will not be payable in the circumstances described in clause 6.1.1 if the Client agrees to extend the period of the Assignment for a specified period at the end of which the Temporary Worker may be Engaged by the Client without further charge.
7. Temporary worker's obligations
7.1. The Temporary Worker shall co-operate fully with the Employment Business on an on-going basis to take such steps as are necessary to obtain an up-to-date Enhanced Disclosure and Barring Service (DBS) certificate where relevant to the Assignment. Any offer of an Assignment will be conditional upon an up-to-date Enhanced DBS certificate or clear Update of Enhanced DBS check being in place. The Temporary Worker is not obliged to accept any Assignment. If the Temporary Worker does accept an Assignment, the Temporary Worker shall:
7.1.1. co-operate with the Client's reasonable instructions and accept the direction, supervision and control of any responsible person in the Client's organisation;
7.1.2. observe any relevant rules and regulations of the Client's organisation (including normal hours of work) of which the Temporary Worker has been informed or of which the Temporary Worker should be reasonably aware;
7.1.3. co-operate with the Employment Business in the completion and renewal of all mandatory checks, including in relation to the Temporary Worker's right to work in the United Kingdom;
7.1.4. take all reasonable steps to safeguard their own health and safety and that of any other person who may be present or be affected by their actions on the Assignment and comply with the health and safety policies of the Client;
7.1.5. not engage in any conduct detrimental to the interests of the Employment Business or the Client;
7.1.6. comply with all relevant statutes, laws, regulations and codes of practice from time to time in force in the performance of the Assignment and applicable to the Client's business, including without limitation, any equal opportunities or non-harassment policies.
7.2. If the Temporary Worker accepts any Assignment, as soon as possible before the commencement of each such Assignment and during each Assignment (as appropriate) and at any time at the Employment Business' request, the Temporary Worker undertakes to:
7.2.1. inform the Employment Business of any Calendar Weeks whether before the date of commencement of the relevant Assignment or during the relevant Assignment in which the Temporary Worker has worked in the same or a similar role with the Client via any third party;
7.2.2. provide the Employment Business with all the details of such work, including (without limitation) details of when, where and the period(s) during which such work was undertaken, the role performed, and any other details requested by the Employment Business; and
7.2.3. inform the Employment Business if before the date of the commencement of the relevant Assignment the Temporary Worker has:
(a) completed two or more assignments with the Client;
(b) completed at least one assignment with the Client and one or more assignments with a member of the Client's Group; or
(c) worked in more than two roles during an assignment with the Client and on at least two occasions has worked in a role that was not the same role as the previous role.
7.3. The information and other matters referred to in clause 6.2 shall be provided by the Temporary Worker by letter sent by recorded delivery to the Employment Business Address (with a copy to such email address as appears on the Platform from time to time).
7.4. If the Temporary Worker is unable for any reason to attend work during the course of an Assignment, they should notify their line manager at the Client, through a telephone call to the telephone number provided by the Client on the platform, and if appropriate the HR Team, at info@TempinCare.co.uk at least two hours before their start time to enable alternative arrangements to be made if applicable. If this is not possible, the Temporary Worker should inform the line manager and if appropriate the HR Team as soon as possible.
7.5. If, either before or during the course of an Assignment, the Temporary Worker becomes aware of any reason why they may not be suitable for an Assignment, they shall notify the Employment Business without delay by email at firstname.lastname@example.org.
8.1. Subject to the Temporary Worker submitting properly authorised time sheets in accordance with clause 9, the Employment Business shall pay the Rate of Pay to the Temporary Worker until the Temporary Worker completes the Qualifying Period.
8.2. Subject to the Temporary Worker submitting properly authorised time sheets in accordance with clause 9, if the Temporary Worker has completed the Qualifying Period on the start date of the relevant Assignment or following completion of the Qualifying Period during the relevant Assignment, the Employment Business shall pay to the Temporary Worker:
8.2.1. the Qualifying Period Rate of Pay; and
8.2.2. the Other Qualifying Period Payments.
8.3. Where the Relevant Terms and Conditions contain a performance-related bonus for which the Temporary Worker may be eligible on completion of the Qualifying Period, the Temporary Worker will comply with any requirements of the Employment Business or the Client relating to the assessment of the Temporary Worker's performance for the purpose of determining entitlement to such bonus and the amount of any such bonus. If the Temporary Worker satisfies the relevant assessment criteria, the Employment Business will pay the Temporary Worker the bonus less any deductions that the Employment Business is required to make by law at the relevant time.
8.4. Subject to any applicable statutory entitlement and to clause 10 and clause 11, the Temporary Worker is not entitled to receive payment from the Employment Business or the Client for time not spent working on the Assignment, whether in respect of holidays, illness or absence for any other reason, unless otherwise agreed.
9. Time sheets
9.1. At the end of each week, week starts 12am Monday and ends 12am following Monday, of an Assignment (or at the end of an Assignment if it is for a period of one week or less or is completed before the end of a week) the Temporary Worker shall deliver to the Employment Business (via the Platform) a completed time sheet in the prescribed format in respect of the Assignment undertaken by them indicating the number of hours worked during the preceding week or the Assignment as appropriate. A copy of the time sheet shall be supplied to the Client to enable the Client to review and authorise.
9.2. If a Client disputes the details provided in a time sheet by the Temporary Worker:
9.2.1. the basis on which the Client disputes, such details shall be provided to the Temporary Worker in writing by the end of the second Tuesday following the week, week deemed to start at 12am Monday and end 12am following Monday, and the Temporary Worker shall have the opportunity to respond in writing by the end of the third Tuesday following the week, week deemed to start at 12am Monday and end 12am following Monday;
9.2.2. pending resolution of any such dispute, the Employment Business shall pay the Temporary Worker on the basis of the hours which the Client authorises.
9.3. Subject to clause 8.2, the Employment Business shall, pay the Temporary Worker for all hours worked regardless of whether the Employment Business has received payment from the Client for those hours. Subject to clause 8.4, in respect of a particular week, such payment shall be made within ten Business Days following the last day of such week.
9.4. Where the Temporary Worker fails to submit a time sheet in the appropriate form or does not do so within the timescale referred to in clause 9.1, any payment due to the Temporary Worker may be delayed while the Employment Business investigates (in a timely fashion) what hours, if any, were worked by the Temporary Worker. The Employment Business shall make no payment to the Temporary Worker for hours not worked.
9.5. For the avoidance of doubt and for the purposes of the WTR 1998, the Temporary Worker's working time shall only consist of those periods during which they are carrying out activities or duties for the Client as part of the Assignment. Time spent travelling to the Client's premises (with the exception of time spent travelling between two or more premises of the Client), lunch breaks and other rest breaks shall not count as part of the Temporary Worker's working time for these purposes. This clause is subject to the Employment Business' obligations to provide the Temporary Worker with the Relevant Terms and Conditions on completion of the Qualifying Period.
9.6. The Temporary Worker acknowledges and accepts that it could be a criminal offence under the Fraud Act 2006 to falsify any time sheet, for example by claiming payment for hours that were not actually worked.
10. Annual leave
10.1. Subject to clause 10.2, the Temporary Worker’s holiday entitlement is 5.6 weeks' holiday during each holiday year (including all bank holiday entitlements), calculated in accordance with and paid in proportion to the number of hours that the Temporary Worker has worked on any Assignment during the holiday year. The Employment Business' holiday year runs between 1 January and 31 December. If an Assignment starts or finishes part way through the holiday year, the Temporary Worker's holiday entitlement during that year shall be calculated on a pro-rata basis rounded up to the nearest half day. The Temporary Worker’s holiday entitlement pursuant to this clause shall be provided and paid in accordance with the provisions of clause 10.3.
10.2. On completion of the Qualifying Period, the Temporary Worker may be entitled to paid and/or unpaid annual leave in addition to the Temporary Worker's entitlement under clause 10.1. In those circumstances, the Employment Business will inform the Temporary Worker of any such entitlement by email, the date from which such entitlement will commence and how payment for such entitlement accrues. The Temporary Worker’s holiday entitlement pursuant to this clause (if any) shall be provided and paid in accordance with the provisions of clause 10.3.
10.3. The Temporary Worker’s holiday entitlement will be paid for as it is earned (in accordance with the provisions of clause 8) on the basis of an appropriate additional percentage of pay by reference to the Temporary Worker’s entitlement pursuant to clause 10.1 and (where applicable) clause 10.2. Such additional pay in respect of the Temporary Worker’s holiday entitlement will be itemised separately when the Temporary Worker is notified of their remuneration. The Temporary Worker is encouraged to take the full amount of their annual leave entitlement in each holiday year using the holiday pay which has been paid to them as it has been earned. Workers accrue holiday at the rate of 12.07% of the hours worked, which is calculated as follows: 5.6 weeks divided by 46.4 weeks (which is 52 weeks less the statutory entitlement of 5.6 weeks). If any workers work more than five days a week their entitlement is capped at 28 days.
10.4. The Temporary Worker should give at least four weeks' notice of any proposed holiday dates where these will occur, or are likely to occur, during the course of an Assignment, and any such proposed holiday dates must be agreed by the HR Team in writing or on the platform in advance. Where such proposed holiday would, or is likely to, occur during the course of an Assignment, no more than five days' holiday may be taken at any one time unless prior consent is obtained from the HR Team. The Employment Business may require the Temporary Worker to take holiday on specific days, as notified to the Temporary Worker.
11. Sickness absence
11.1. If the Temporary Worker is absent from work for any reason, they must notify their line manager at the Client, and the HR Team, by telephone of the reason for their absence as soon as possible but no later than 9:00 am. on the first day of absence. Notification by text will not be acceptable.
11.2. If the Temporary Worker satisfies the qualifying conditions laid down by law, they may be entitled to receive Statutory Sick Pay (SSP) at the prevailing rate in respect of any period of sickness or injury during the Assignment. The Temporary Worker will not be entitled to any other payments during such period.
11.3. In all cases of absence, a self-certification form, which is available from the HR Team, email at info@TempinCare.co.uk, must be completed on the Temporary Worker's return to work and supplied to the HR Team. For any period of incapacity due to sickness or injury which lasts for seven consecutive days or more, a doctor's certificate (a "statement of fitness for work") stating the reason for absence must be obtained at the Temporary Worker's own cost and supplied to the HR Team. Further certificates must be obtained if the absence continues for longer than the period of the original certificate.
11.4. The Temporary Worker's qualifying day for SSP purposes is Monday to Sunday.
12.1. The Employment Business, the Client or the Temporary Worker may terminate an Assignment at any time forthwith on notice without prior notice or liability.
12.2. The Temporary Worker acknowledges that the continuation of an Assignment is subject to and dependent on the continuation of the agreement entered into between the Employment Business and the Client. If that agreement is terminated for any reason, the Assignment shall cease with immediate effect without liability to the Temporary Worker, except for payment for work done up to the date of termination of the Assignment.
12.3. Unless exceptional circumstances apply, the Temporary Worker's failure to inform the Client or the Employment Business of their inability to attend work as required by clauses 7.3 and/or 11.1 will be treated as termination of the Assignment by the Temporary Worker.
12.4. If the Temporary Worker is absent, excluding permissible illness covered in clause 11, during the course of an Assignment and the Assignment has not otherwise been terminated, the Employment Business will be entitled to terminate the Assignment in accordance with clause 12.1 if the work to which the Temporary Worker was assigned is no longer available.
12.5. Where a Temporary Worker ceases to have the appropriate skills, approvals, Enhanced DBS checks or right to work in the United Kingdom or where this agreement may have been breached, the Employment Business will be entitled to notify the Client via email, as soon as evidence is validated by the Employment Business, and terminate the Assignment in accordance with clause 12.1.
12.6. Where a Temporary Worker is deemed unsuitable by the Client (an Unsatisfactory Temporary Worker) the Employment Business is entitled to terminate the Assignment in accordance with clause 12.1. The Temporary Worker is entitled to obtain evidence from the Employment Business for a copy of the Client’s grounds for dissatisfaction with the Unsuitable Temporary Worker.
13. Intellectual property rights
13.1. The Temporary Worker acknowledges that all Intellectual Property Rights deriving from services carried out by the Temporary Worker for the Client during the Assignment shall belong to the Client. Accordingly, the Temporary Worker shall execute all such documents and do all such acts as the Client shall from time to time require in order to give effect to the Client's rights pursuant to this clause.
13.2. The Temporary Worker hereby grants to the Employment Business an exclusive licence during the term of this agreement to use any and all Intellectual Property Rights in information (including the Worker Video or Audio statement) submitted as part of the Worker Information for the purposes of this Agreement, including for use on the Platform and disclosure to Clients.
14.1. In order to protect the confidentiality and trade secrets of the Employment Business and the Client, the Temporary Worker agrees not at any time:
14.1.1. whether during or after an Assignment (unless expressly so authorised by the Client or the Employment Business as a necessary part of the performance of their duties), to disclose to any person or to make use of any of the trade secrets or the Confidential Information of the Client or the Employment Business; or
14.1.2. to make any copy, abstract or summary of the whole or any part of any document or other material belonging to the Client or the Employment Business except when required to do so in the course of the Temporary Worker's duties under an Assignment, in which circumstances such copy, abstract or summary would belong to the Client or the Employment Business, as appropriate.
14.2. The restriction in clause 14.1 does not apply to:
14.2.1. any use or disclosure authorised by the Client or the Employment Business or as required by law, a court of competent jurisdiction or any governmental or regulatory authority;
14.2.2. any information which is already in, or comes into, the public domain otherwise than through the Temporary Worker's unauthorised disclosure; or
14.2.3. the making of a protected disclosure within the meaning of section 43A of the Employment Rights Act 1996.
14.3. At the end of each Assignment or on request the Temporary Worker agrees to deliver up to the Client or the Employment Business (as directed) all documents (including copies), ID cards, swipe cards, equipment, passwords, pass codes and other materials belonging to the Client which are in its possession, including any data produced, maintained or stored on the Client's computer systems or other electronic equipment.
15. Data protection
15.1. The Temporary Worker consents to the Employment Business and the Client and any other intermediary involved in supplying the services of the Temporary Worker to the Client holding and processing data relating to them, including the Worker Information, for legal, personnel, administrative and management purposes and in particular to the processing of any "sensitive personal data" as defined in the Data Protection Act 1998 relating to them including, as appropriate:
15.1.1. information about their physical or mental health or condition to monitor sick leave and take decisions as to their fitness for work;
15.1.2. their racial or ethnic origin or religious or similar beliefs to monitor compliance with equal opportunities legislation; and
15.1.3. information relating to any criminal proceedings in which they have been involved for insurance purposes and to comply with legal requirements and obligations to third parties.
15.2. The Temporary Worker consents to the Employment Business and the Client or any intermediary involved in supplying the Temporary Worker's services to the Client making such information available to the Client, other Group companies, those who provide products or services to the Employment Business (such as advisers), regulatory authorities, governmental or quasi-governmental organisations and potential purchasers of the Employment Business or other Group companies or any part of its business.
15.3. The Temporary Worker consents to the transfer of such information outside the European Economic Area for purposes connected with the performance of this agreement.
15.4. For the avoidance of doubt (and without prejudice to the foregoing provisions of this clause 15), where the Temporary Worker has agreed to the same via the Platform, they consent to the Public Information being visible to Registered Clients and accordingly also consent to Registered Clients processing the data comprised in the Public Information.
15.5. Mobile Employment Ltd. (trading as “Temp in Care”) respects and complies with the EU General Data Protection Regulations (GDPR).
Some of the key ways we comply with these regulations are:
Consent: We explain what you’re consenting to clearly and ask that you explicitly consent to contact from us.
Breach Notification: In the event of a breach we will notify affected users within 72 hours of first having become aware of the breach.
Right to Access: Users can request confirmation as to whether or not personal data concerning them is being processed, where and for what purpose. Further, we shall provide a copy of the personal data, free of charge, in an electronic format.
Right to be Forgotten: Once we have compared your (the subjects') rights to "the public interest in the availability of the data", we may delete your personal data where you have requested this.
Data Portability: We allow you to receive the personal data concerning you, which we will provide in a 'commonly used and machine-readable format' and you have the right to transmit that data to another ‘controller’.
Privacy by Design: We implement appropriate technical and organisational measures, in an effective way, in order to meet the requirements of this Regulation and protect the rights of data subjects'. We hold and process only the data absolutely necessary for the completion of our duties (data minimisation), as well as limiting the access to personal data to those needing to act out the processing.
16. Warranties and indemnities
16.1. The Temporary Worker warrants that:
16.1.1. they are supplying their services under this Agreement in a personal capacity and not through a limited company, personal service company or other business entity.
16.1.2. the information supplied to the Employment Business in any application documents, via the Platform, and/or in the Worker Information is factually correct and will be obliged to keep it factually correct on an ongoing basis;
16.1.3. before accepting any Assignment, the Temporary Worker will ensure that they have the experience, training, qualifications, skills and any authorisation which the Client considers are necessary or which are required by law or by any professional body for the Temporary Worker to possess in order to perform any Assignment which the Temporary Worker undertakes or for which they apply;
16.1.4. the Temporary Worker is not prevented by any other agreement, arrangement, restriction (including, without limitation, a restriction in favour of any employment agency, employment business or client) or any other reason, from fulfilling the Temporary Worker's obligations under this Agreement; and
16.1.5. the Temporary Worker has valid and subsisting leave to enter and remain in the United Kingdom for the duration of this agreement and is not (in relation to such leave) subject to any conditions which may preclude or have an adverse effect on any Assignment which they undertake.
16.2. The Temporary Worker shall indemnify and keep indemnified the Employment Business and the Client against all Demands (including legal and other professional fees and expenses) which the Employment Business or the Client may suffer, sustain, incur, pay or be put to arising from or in connection with:
16.2.1. any failure by the Temporary Worker to comply with its obligations under the terms of this agreement;
16.2.2. any negligent or fraudulent act or omission by the Temporary Worker;
16.2.3. the disclosure by the Temporary Worker of any Confidential Information;
16.2.4. any employment-related claim brought by the Temporary Worker in connection with the Assignment; or
16.2.5. the infringement by the Temporary Worker of the Client's or any Group Company's Intellectual Property Rights.
17. Removal of Temporary Worker from the Platform
17.1. The Employment Business shall be entitled, at any time, including but not limited to in the circumstances described in clause 17.2 below, without prior notice or liability, to:
17.1.1. remove from the Platform, the Worker Information, and all other details relating to the Temporary Worker; and
17.1.2. block the Temporary Worker’s access to the Platform.
17.2. The circumstances referred to in clause 17.1 are that:
17.2.1. the Temporary Worker has breached any of the warranties or indemnities in Clause 16.1 above or is otherwise in breach of this Agreement;
17.2.2. the Employment Business considers, in its absolute discretion, that the Temporary Worker’s Worker Rating is such as to warrant taking the actions referred to in Clause 17.1.
18. Limitation of Liability
18.1. Access to the Platform is free of charge. The Employment Business does not guarantee that the Platform, or any content on it, will always be available or be uninterrupted. Access to the Platform is permitted on a temporary basis. The Employment Business may suspend, withdraw, discontinue or change all or any part of the Platform without notice. The Employment Business will not be liable to the Temporary Worker if for any reason the Platform is unavailable at any time or for any period.
18.2. The Temporary Worker acknowledges that the Worker Rating is derived from ratings provided by Clients and that the Employment Business has no control whatsoever over them. The Employment Business shall therefore have no liability to the Temporary Worker for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising out of or in connection with the Temporary Worker’s Worker Rating. The Employment Business will be able to delete or remove ratings based on their discretion and in light of evidence of unfair ratings.
18.3. The Temporary Worker acknowledges that details of Assignments are provided by Clients. Other than in respect of the Required Assignment Information, the Employment Business makes no representations, warranties or guarantees, whether express or implied, that the content on the Platform is accurate, complete or up-to-date.
18.4. Nothing in this Agreement excludes or limits the liability of the Employment Business for death or personal injury arising from its negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.
19. No partnership or agency
19.1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
19.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20. Entire agreement
20.1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
20.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20.3. No variation of or amendment to this agreement shall be effective unless it is in writing (including in electronic form). A written copy of the varied terms, including the date from which they take effect, shall be given to the Temporary Worker no later than the fifth Business Day following the day on which the variation was agreed.
20.4. Nothing in this clause shall limit or exclude any liability for fraud
20.5. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
21. Third Party rights
21.1. No one other than a party to this agreement and, in the case of the Employment Business, their successors and permitted assignees, shall have any right to enforce any of its terms.
22.1. Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall (except where this agreement expressly provides for communication by email) be:
22.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);
22.2. Any notice or communication shall be deemed to have been received:
22.2.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
22.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
22.2.3. if sent by email, at the time of transmission.
22.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22.4. For the purposes of this clause, "writing" shall not include e-mail except where this agreement expressly provides for communication by email.
23.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
23.2. If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
24. Governing law
24.1. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
25.1. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).