TERMS AND CONDITIONS OF SERVICE
1. Definitions:
1.1. “The ELAS Group” shall mean all companies, organisations and undertakings associated with the ELAS Group, including but not limited to:
1.1.1. Employment Law Advisory Services Ltd. (t/a ELAS and the ELAS Group)
1.2. The parties agree that this agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else save as to the parties listed at 1.1 above. The parties agree that this agreement may be enforced by the companies listed above at 1.1 above.
1.3. All references to any statute or statutory provision shall be deemed to include references to any statute or statutory provision which amends, extends, consolidates or replaces the same, and includes any subordinate legislation in force at the time covered by this agreement and any provisions made under said legislation
1.4. Unless the context requires otherwise, references to one gender shall include the other gender and references to the singular shall include the plural
1.5. All headings in these terms are for convenience only and do not affect the interpretation of the terms.
2. Special Indemnity Clients Only(*)
2.1. Employment Law Clients
2.1.1.1. purchased the Employment Tribunals Service including Special Indemnity;
2.2. Health and Safety
2.2.1.1. purchased the Health & Safety Service including Special Indemnity;
2.3. Special Indemnity Claims Process
2.3.1.1. The defence of the legal rights of the Client in a dispute with a previous, present or prospective employee (defined in this agreement as an individual who has entered into, or works, or has worked under a contract of employment with the Client, whether express or implied if it is express whether oral or in writing) arising out of or relating to a contract of employment; or
2.3.2. Any Special Indemnity under this agreement shall only apply where in all cases the Client has consulted with the ELAS Group and followed with due diligence and dispatch all advice provided by the ELAS Group before taking any action or making any significant variation to an Employee’s contract of employment.
2.3.3. Any Special Indemnity under this agreement shall be subject to the conditions contained in this agreement
2.4. The ELAS Group shall have full discretion at any time whether or not to discontinue (meaning decline to provide or withdraw any offer to provide) any special indemnity in whole or in part, or cancel this agreement, notwithstanding its right to decline any claim or cancel this agreement in the circumstances detailed below:
2.5. Conduct of Legal Proceedings
2.6. Annual Declaration – on each anniversary of the commencement date of this agreement, the Client shall complete a declaration in the form as may be required by the ELAS Group. Subject to disclosure of claims history and growth in the size of the Client or its business, the special indemnity may be extended, replaced or renewed upon terms to be notified by the ELAS Group. If the Client fails to complete and return the declaration form within 14 days of the form being forwarded to the Client or if the declaration is deemed unsatisfactory by the ELAS Group, then any agreement to provide special indemnity may be terminated. However, the remaining provisions of this agreement will continue in full force and effect.
2.7. Cancellation of Special Indemnity – the ELAS Group shall have full discretion whether or not to cancel the special indemnity at any time by serving written notice to the Client at its last known address or by email. In such an event the Client shall be entitled to a return of a proportionate part of the payments made, corresponding to any unexpired period of the special indemnity, less any administration costs.
2.8. Exclusions – for the sake of clarity, any special indemnity under this agreement shall not be provided in respect of any claims arising out of the following:
3. All Clients (Including Special Indemnity)
3.1. (*) Annual Declaration
3.2. Payment Terms
3.3. Termination and Breach
3.4. General
3.5. Liability
3.6. Complaints
3.7. Engagement of ELAS Group Employees and/or Sub-Contractors engaged by the ELAS Group
4. Occupational Health and Health Surveillance Cancellation Fees
4.1. In addition to the fees paid to the ELAS Group for the provision of its services, the ELAS Group reserves the right to charge additional costs in the event of the cancellation of confirmed appointments arranged to carry out occupational health and health surveillance services, where a Client has agreed a visit for the ELAS Group to carry out health surveillance or a visit by an Occupational Health Nurse or physician less than two weeks prior to the appointment.
4.2. Such additional charges specified in will be invoiced at the rate set out below:
4.3. Rescheduling a confirmed appointment arranged to carry out occupational health and health surveillance service shall be considered a cancellation of a confirmed appointment arranged to carry out occupational health and health surveillance service.
5. All Appointment Cancellations and Rescheduling by The ELAS Group
5.1. The ELAS Group reserves the right to cancel or reschedule any other form of appointments, visits, training or other pre-booked activity, diary entry, job or service, whether by telephone or in-person, at their discretion for any reason including, but not limited to, sudden unavailability of the ELAS Group’s representative. Refunds, either full or in part, shall be at the sole discretion of the ELAS Group.
5.2. The ELAS Group reserves the right to substitute a member of the ELAS Group personnel for another member of the ELAS Group personnel to complete any appointments, visits, training or other pre-booked activity, diary entry, job or service, whether by telephone or in-person, at their discretion for any reason including, but not limited to, sudden unavailability of the ELAS Group’s representative. Refunds, either full or in part, shall be at the sole discretion of the ELAS Group.
6. Employment Law, Health and Safety and Food Safety Visits
6.1. Without prejudice to Clause 5 above, where a client has agreed and confirmed a visit by a consultant and the ELAS Group is subsequently then unable to fulfil that visit obligation as a result of any reason, matter, conduct or failure of or by the Client, the ELAS Group will consider their obligations pertaining to the visit as discharged, unless the client has provided at least 14 clear days’ notice of cancellation or rescheduling of the visit. For the avoidance of doubt, ‘rescheduling’ is to be considered a ‘cancellation.’
6.2. Without prejudice to Clause 5 above, the ELAS Group retains complete discretion as to whether or not the visit can be re-arranged. If a visit is re-arranged, then the ELAS Group also reserves the right to charge the Client at the hourly rate of £195.00 plus VAT for all reasonable costs associated with the aborted visit. Accommodation will be charged at the cost of the booking for the accommodation. Travel time will also be charged at £50.00 per hour plus VAT and mileage at £0.45 per mile.
6.3. The ELAS Group also reserves the right to hold the Client liable for the costs of the time allocated for the purposes of any aborted visit, whether cancelled or rescheduled. This is to be charged at a rate of £1,395.00 plus VAT for up to a full day and £695.00 plus VAT for up to a half a day.
6.4. In respect of appointments entered into as a single instance service, cancellation charges shall apply as follows:
6.4.1. Where less than two weeks notification in writing is provided by the Client, 50% of the agreed fee will be charged
6.5. The Client rescheduling an appointment shall be considered a cancellation.
6.6. Where the ELAS Group has made three attempts to arrange visits in any particular contract year but those efforts have not resulted in a scheduled visit, the ELAS Group will consider their obligations discharged as to the visits to be performed in that contract year. The number of visits due under the agreement shall be reduced pro rata to reflect the loss of visits for that contract year.
6.7. At their sole discretion, the ELAS Group may choose to perform visits provisionally planned or anticipated for performance in one contract year in an alternative contract year.
6.8. Unless the service agreement provides otherwise, a visit shall be considered a half day visit for up to 3 hours. Where a visit can be conducted in less than 3 hours or less than the specified time, there shall be no requirement for the ELAS Group representative to remain on site beyond what is required to perform the services and the visit shall be considered completed and discharged.
6.9. Where the ELAS Group representative attends for longer than the specified time (being the half day or the time specified in the agreement), the ELAS Group may charge the Client at the ELAS Group’s standard hourly rate as in place from time to time.
7. Training and e-Learning including Cancellation, Substitution & Rescheduling Charges
7.1. Without prejudice to Clause 5 above, where the Client wishes to cancel, substitute or reschedule training of any kind, the following charges shall apply:
7.2. Where the ELAS Group has offered ‘unlimited’ e-learning under the service described overleaf, the following shall apply:
7.3. Where the ELAS Group offers credits for use of e-learning courses, such credits shall remain valid for a period of 1 year. Thereafter, the ELAS Group retains sole discretion as to whether to permit any rollover of credits to a new year, any extension to the use of credits or any refund of unused credits. The ELAS Group shall not be bound by the past exercise of discretion in any future or similar circumstance.
7.4. The ELAS Group shall only supply externally accredited training or e-learning where this is specifically provided for in the Service Agreement. Where the supply of externally accredited training or e-learning is not specified, the ELAS Group shall supply the ELAS Group’s standard training or e-learning.
7.5. All training and e-learning shall be delivered and conducted in the English language unless otherwise stated.
8. Occupational Health and Health Surveillance
8.1. The Client shall provide all reasonable assistance and follow all reasonable instructions from the ELAS Group with regards to seeking appropriate consent from employees, issuing notifications and information to employees and to provide necessary access to facilities, grounds, sites, employees, equipment and records. Where, in the sole opinion of the ELAS Group, the Client has failed to comply with the requirements of this Clause 8.1, the ELAS Group reserve the right to consider the appointment cancelled and the cancellation fees detailed at Clause 4 shall apply.
8.2. Pre-placement questionnaires – where the ELAS Group is unable to issue a certificate of fitness and needs to contact the Client’s employee for further information in order to determine fitness, a further fee will be charged inline with the ELAS Group’s standard prices as in place from time to time.
8.3. Occupational health portal – Clients who are provided access to our online portal to view occupational health and health surveillance results will have access to the portal for 12 months from the date of the last assessment provided by the ELAS Group. This access will apply to the location that the services were delivered to.
8.4. Without prejudice to Clause 4 above, where an occupational health telephone consultation has been agreed, the ELAS Group will telephone the employee at the appointed time. Should there be no response further calls will be made at 10 minutes and 20 minutes after the first call. In the event that the employee does not answer the telephone, the ELAS Group will charge the Client who has requested the telephone consultation a full fee for the abortive calls.
8.5. Where the Client has been provided with consent forms to give to the person undertaking the appointment and these have not been signed and returned to the ELAS Group at least 24 hours before the appointment, the telephone consultation may be cancelled and the ELAS Group’s liability for the performance of the appointment shall be discharged and any fees, if applicable, shall be due in full.
8.6. All Occupational Health and Health Surveillance Appointments shall be conducted by an Occupational Health Technician unless the service agreement specifies otherwise or where required by legal and professional requirements.
8.7. All Occupational Health and Health Surveillance appointments which are required by legal and professional requirements to be conducted by a medical practitioner shall be conducted by an Occupational Health Adviser unless the service agreement specifies otherwise or where required by legal and professional requirements.
8.8. Unless the service agreement provides otherwise, a half day appointment shall be considered an appointment for up to 3 hours and a full day appointment shall be considered an appointment for up to 7 hours. Where a visit can be conducted in less than 3 hours, less than 7 hours or less than the specified time, there shall be no requirement for the ELAS Group representative to remain on site beyond what is required to perform the services and the appointment shall be considered completed and discharged.
8.9. Where the ELAS Group representative attends for longer than the specified time (being the half day, full day or the time specified in the agreement), the ELAS Group may charge the Client at the ELAS Group’s standard hourly rate as in place from time to time.
8.10. The ELAS Group may amend any medical report, assessment outcome or other advice issued at their discretion as may be required from time to time.
8.11. The Client shall be responsible for ensuring that Intelligent Fingerprinting drug and alcohol testing is appropriate in the circumstances. The ELAS Group shall bear no liability where Intelligent Fingerprinting drug and alcohol testing is used and it is subsequently considered that an alternative form of drug and alcohol testing is preferred, required or advised.
8.12. Where drug and alcohol testing produces a non-negative result, the Client shall be responsible for all laboratory testing and follow up fees where the samples are subject to laboratory or follow up tests of any kind. Such fees are not known in advance and will be advised as soon as reasonably practicable.
8.13. The Client will be responsible for the reporting of all RIDDOR reportable health related conditions, as diagnosed by a registered medical practitioner, to the Health and Safety Executive.
9. Transfer of Medical Records
9.1. Where the ELAS Group stores a Client’s Occupational Health and/or Health Surveillance Medical Records and the Client wishes to no longer use the ELAS Group services and the Client wishes to have those Occupational Health and/or Health Surveillance Medical Records transferred to another provider, the Client will be charged a transfer fee of £6.00 plus VAT per file and/or per employee plus any delivery costs, if applicable, to transfer occupational health records to a new provider. The ELAS Group may withhold transfer of the records until the transfer fees have been paid. The Client expressly permits the ELAS Group to withhold transfer of the records until the transfer fees have been paid.
9.2. Where the ELAS Group stores a Client’s Occupational Health and/or Health Surveillance Medical Records and the Client wishes to no longer use the ELAS Group services but the Client does not wish to have those Occupational Health and/or Health Surveillance Medical Records transferred to another provider, the Client will be charged a storage fee of £50.00 plus VAT per annum.
9.3. When requesting that Occupational Health and/or Health Surveillance Medical Records are transferred to the ELAS Group, the Client agrees to provide all reasonable assistance and follow all reasonable instructions from the ELAS Group. The ELAS Group shall not be liable for a failure to complete a transfer of Occupational Health and/or Health Surveillance Medical Records where the Client has not, in the sole opinion of the ELAS Group, provided all reasonable assistance and followed all reasonable instructions from the ELAS Group.
9.4. When requesting that Occupational Health and/or Health Surveillance Medical Records are transferred from the ELAS Group, the ELAS Group shall only transfer the Occupational Health and/or Health Surveillance Medical Records to a medical professional registered and accredited by the GMC or NMC. The ELAS Group shall not be liable for a failure to complete a transfer of Occupational Health and/or Health Surveillance Medical Records where a request has been made to transfer the Occupational Health and/or Health Surveillance Medical Records to anyone other than a medical professional registered and accredited by the GMC or NMC.
9.5. Where the Client or their previous Occupational Health provider is unable to supply Occupational Health and/or Health Surveillance Medical Records in a wholly electronic format with an appropriate index of the records, the ELAS Group shall require the Client to agree to the ELAS Group’s Waiver of Liability (OH-FM-292 Waiver of Liability). The ELAS Group shall not accept the transfer of Occupational Health and/or Health Surveillance Medical Records that are not wholly in electronic format with an appropriate index of the records unless the Client agrees to the ELAS Group’s Waiver of Liability (OH-FM-292 Waiver of Liability) and the Parties agree that the ELAS Group shall not be in breach of this agreement if the Client refuses to agree to the ELAS Group’s Waiver of Liability (OH-FM-292 Waiver of Liability) and the ELAS Group subsequently refuse to accept a transfer of Occupational Health records.
10. Single Instance Services
10.1 The ELAS Group shall perform Single Instance Services within a reasonable time frame with regard to, but not limited to, the complexity of the work involved, resources, costs and the value of work. It shall be for the ELAS Group to determine what is reasonable. The Client shall comply with all requests made by the ELAS Group to arrange and undertake the work including, but not limited to, diarising, access to sites, power, networks, staff, IT systems and IT infrastructures as may be required to perform the Single Instance Services. Should the Client, in the sole opinion of the ELAS Group, fail to comply with any such request, the ELAS Group may elect to terminate the Single Instance Service and charge the Client the full fee for the Single Instance Service.
10.2 Without prejudice to Clause 10.1 above, the ELAS Group’s obligations to perform services for Single Instances Services or any job only or single instance service, terminates upon performance of the service or inline with any cancellation provision in this Agreement. The ELAS Group has no ongoing obligation to the client on completion of the agreed service, or inline with any cancellation provision in this Agreement or the expiry of this agreement unless expressly provided for in this Agreement.
11. Payroll
11.1. Where Payroll Services are provided by the ELAS Group, the Client is charged a monthly subscription calculated as follows:
11.2. If additional employees are added by the Client above the agreed initial numbers set out overleaf, the ELAS Group will invoice the Client at a cost per additional employee of the cost per employee of the agreed initial number
11.3. Without prejudice to clauses 2.6 and/or 3.1, where the amount of additional employees exceed 10% of the agreed initial number set out overleaf, the ELAS Group reserves the right to increase the monthly subscription to cover the increased costs resulting from such an increase
11.4. For the avoidance of doubt, there shall be no entitlement to a discount in the event of a decrease in the number of employees. Any such discount shall be at the sole discretion of the ELAS Group. The ELAS Group shall not be bound by the same exercise of discretion in future or similar circumstances
11.5. The Client shall provide all reasonable assistance to the ELAS Group and follow all reasonable instructions given by the ELAS Group with regards to providing information to the ELAS Group in a timely fashion and supplying necessary information to employees. The ELAS Group shall not be liable for a failure to complete any particular payroll processing where, in the sole opinion of the ELAS Group, the Client has failed to provide all reasonable assistance to the ELAS Group and/or failed to follow all reasonable instructions given by the ELAS Group.
11.6. The Client shall be responsible for the rectification of any errors in the payroll processing which result in overpayments or underpayments to employees, HMRC, Pension Providers or any other recipient of payroll monies of any kind. It shall be for the Client to seek recovery of any overpayments to employees, HMRC, Pension Providers or any other recipient of payroll monies of any kind. It shall be for the Client to make payments to rectify any underpayments to employees, HMRC, Pension Providers or any other recipient of payroll monies of any kind.
11.7. The Client shall be responsible for any fines, penalties, legal fees, court fees, legal costs, expenses or payments of any kind resulting from overpayments or underpayments to employees, HMRC, Pension Providers or any other recipient of payroll monies of any kind.
12. Attendance Pro
12.1. Where Attendance Pro services are provided by the ELAS Group, The Client is charged a monthly subscription as set out in the Service Agreement.
12.2. Where the number of employees using the service is higher than the amount noted in the Service Agreement, the ELAS Group reserves the right to invoice the Client for each additional employee at the rates set out in the Service Agreement or the amended rates where that rate has been amended under Clauses 2.6, 3.1 or 12.3.
12.3. Without prejudice to Clauses 2.6 and/or 3.1, where the number of employees using the Attendance Pro service increases by 10% at any time, the ELAS Group reserves the right to permanently increase the monthly subscription to cover the increased costs resulting from such an increase
12.4. For the avoidance of doubt, there shall be no entitlement to a discount in the event of a decrease in the number of employees. Any such discount shall be at the sole discretion of the ELAS Group. The ELAS Group shall not be bound by the same exercise of discretion in future or similar circumstances
12.5. The Client shall provide all reasonable assistance to the ELAS Group and follow all reasonable instructions given by the ELAS Group with regards to providing information to the ELAS Group in a timely fashion and supplying necessary information to employees. The ELAS Group shall not be liable for a failure to provide Attendance Pro services where, in the sole opinion of the ELAS Group, the Client has failed to provide all reasonable assistance to the ELAS Group and/or failed to follow all reasonable instructions given by the ELAS Group.
13. IT Services
13.1. Any services relating to IT Software, IT Software Packages, IT Portals, IT Cloud or Web-Based Services or any other IT software services of any kind, the Client agrees to comply with the Licencing Terms provided to the Client prior to the first use. Any breach of the Licencing Terms shall be considered a material breach of this Agreement.
13.2. The Client shall be responsible for checking any software compatibility matters. The ELAS Group shall not be liable for any IT Software, IT Software Packages, IT Portals, IT Cloud or Web-Based Services or any other IT software services not being compatible with the Client’s IT systems.
13.3. Any services relating to IT Support, IT Helplines, IT Helpdesks or any other IT Support Services of any kind, the Client agrees to limit use of such services to fair use. It shall be for the ELAS Group to determine what is fair use in all the circumstances.
13.4. Where a Client sets up any form of user profile on any IT Software, IT Software Packages, IT Portals, IT Cloud or Web-Based Services or any other IT software services of any kind, the Client shall be responsible for ensuring that the user profile is correctly set up with appropriate permissions. The ELAS Group shall not be responsible for any errors to user profiles where these have been set up, initiated or created by the Client.
14. Data Protection
14.1 ELAS operate as both a data controller and data processor dependant on the service or part of the service provided.
14.2 In accordance with applicable data protection laws the linked is a pre-populated data sharing and data processing agreements for relevant services . These agreements will remain for all processing both now and future, direct or through the portal unless otherwise stated.
15. Confidentiality & Intellectual Property
15.1. Save as to where required to be disclosed by law or in the case of disclosure to legal and/or professional advisers or in the instances detailed in Clause 18.2 below, the ELAS Group shall not, other than with the prior written consent of the Client, either during or after the termination of the contract, disclose to any person, firm or third party any confidential information relating to the Client, its employees, business, trade secrets, customers or suppliers nor shall the ELAS Group use confidential information other than for the purposes of the contract.
15.2. For the purposes of this Clause 15, confidential information shall mean information supplied to the ELAS Group by the Client in connection with the contract and which either party to this agreement might reasonably be expected to object, for whatever reason, to such information becoming generally known.
15.3. Except as may be otherwise stated, both the ELAS Group and the Client retain ownership of their pre-existing intellectual property rights. Neither party should infringe the intellectual property rights of the other party and must inform the relevant party should an infringement or possible infringement occur.
15.4. The parties agree that upon expiry of the agreement they will immediately cease use of the intellectual property of the other.
16. Transfer of Undertakings
16.1. “TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended including any future or subsequent amendments
16.2. The Client shall be responsible for the dismissal and/or termination of any staff and/or employees where the Client considers such terminations necessary or desirable as a result of the engagement of the ELAS Group
16.3. If a Court or Tribunal holds that the Services supplied by the ELAS Group are subject to TUPE, the Client will indemnify, keep indemnified and hold harmless the ELAS Group, its Affiliates against all losses, compensation, damages or awards which arise out of or are connected with:
16.4. Without prejudice to Clause 16.2 ,for the avoidance of doubt, if any staff or employee of the Client claims that their contract of employment has transferred (or should have transferred) to the ELAS Group as a result of TUPE on the commencement or termination of the Agreement or the Services (or any part of the Services), the ELAS Group may, if seeking to rely on any of the above indemnities and on becoming aware of such a transfer (or alleged transfer), terminate such contract of employment, provided always that upon any such termination the special indemnity relied upon shall apply for the benefit of the ELAS Group.
16.5. The Client shall not at any time whatsoever for any reason whatsoever contend that TUPE shall apply
17. DBS
17.1. Where a particular number of DBS checks per annum are included as part of the agreement, the ELAS Group retains sole discretion as to whether any unused DBS checks may be used in alternative years of the agreement
17.2. Where a particular number of DBS checks are not included, this service shall be invoiced separately at the rate specified by HM Government as may change from time to time.
17.3. Where a particular fee has been agreed, the ELAS Group reserve the right to vary this fee where such fees are amended by HM Government from time to time.
17.4. The ELAS Group shall not be liable for any failure by the client to comply with any reasonable request for further information and the full fee shall be due
18. Reportable matters
18.1. The Client is responsible for reporting any reportable matter to HMRC, HSE, RIDDOR, ICO, Local Authority or any other regulatory, accrediting or enforcement body within the applicable timelines set by law or by the regulatory or accrediting body.
18.2. The ELAS Group reserves the right to report any matters they deem appropriate to any public body, local authority, regulator or accreditor as the case may be. The Client gives their consent to the ELAS Group making such disclosures as the ELAS Group see fit in the circumstances.
19. Variation
Without prejudice to any Clause contained herein that permits the ELAS Group to vary any term of the agreement, the ELAS Group may, at their sole discretion, amend any other clause of this Agreement upon the provision of 30 days written notice.
20. Excluded Clauses
Clauses marked with an asterisk (*) shall not apply to any single instance service.
21. Governing Law and Jurisdiction
This Agreement should be governed and interpreted exclusively according to the law of England and Wales, and shall be subject to the exclusive jurisdiction of the courts of England and Wales.
