TERMS OF ENGAGEMENT FOR BROOKSON SOLUTIONS LIMITED
AGREEMENT FOR THE PROVISION OF MEDICAL SERVICES
1. DEFINITIONS
1.1 – In this Agreement unless the context otherwise requires:
Agreement means the agreement between the NHS Entity and the Company for the provision of the Medical Services incorporating these Terms and the details of Assignment provided by the Online Portal used by the NHS Entity;
Assignment means the period of engagement of the Company to provide the Medical Services;
Authorised Representative means any employee, officer or representative of the NHS Entity authorised to sign a Doctor’s or Medical Professional’s timesheet;
Business Day means any day on which banks are generally open for business in the City of London (other than Saturdays, Sundays or public holidays) and the expression Business Days shall be construed accordingly;
Company means Brookson Solutions Limited (whose registered office is at Brunel House, 340 Firecrest Court, Centre Park, Warrington, Cheshire, WA1 1RG) or such other person, firm or company engaged by the NHS Entity to provide Medical Services in accordance with this Agreement;
Confidential Information means (without limitation) lists or details of patients, service users, service providers, customers, suppliers and/or information relating to the working of any process or invention carried on or used by the NHS Entity, information relating to research, projects, secret formulae, processes, inventions, designs, know-how, discoveries, technical specifications and other technical information, accounts or financial dealings of the NHS Entity and/or price sensitive information;
Data shall mean Personal Data and/or Sensitive Data as defined in the Data Protection Legislation
Data Controller shall be as defined in the Data Protection Legislation
Data Processor and Data Processing shall be as defined in the Data Protection Legislation
Data Protection Legislation means (i) the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), the Law Enforcement Directive (Directive (EU) 2016/680) and any applicable national implementing laws as amended from time to time (ii) the Data Protection Act 2018 subject to Royal Assent to the extent that it relates to processing of personal Data and privacy; (iii) all applicable law about the processing of Data and privacy;
Data Subject shall be as defined by the Data Protection Legislation;
Data Subject Access Request shall be as defined by the Data Protection Legislation;
Doctor or Medical Professional means the suitably qualified individual(s) deployed by the Company to provide the Medical Services to the NHS Entity, who is an employee of the Company;
Fee means the gross fee which shall be payable by the NHS Entity to the Company in respect of the Medical Services performed by the Doctor(s) or Medical Professional(s);
Medical Services means the services to be provided by the Company to the NHS Entity as set out in the details of Assignment provided by the Online Portal used by the NHS Entity which consist entirely of Medical Services provided by registered medical professionals with the primary purpose of protecting, maintaining or restoring the health of the NHS Entity’s patients, service users or customers (howsoever defined);
NHS Entity means the NHS Trust, NHS Board, NHS Health Board or NHS hospital referred to in the details of Assignment provided by the Online Portal used by the NHS Entity;
Online Portal means the technology based booking/engagement system used by the NHS Entity to procure the provision of Medical Services including (but not limited to) the +Us Contingent Workforce System (CWS) or such other technology provided by a third party from time to time;
Sensitive Data shall be as defined in the Data Protection Legislation.
1.2 – Unless the Agreement requires otherwise references to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3 – The headings contained in this Agreement are for convenience only and do not affect their interpretation.
1.4 – Any reference in this Agreement to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as, from time to time, amended, consolidated, modified, replaced, re-enacted or extended.
2. THE AGREEMENT
2.1 – This shall be the agreement to the exclusion of all other terms and conditions (including any terms and conditions which the NHS Entity purports to apply under any other document).
2.2 – The Company has agreed to provide the Medical Services to the NHS Entity. For the avoidance of doubt, neither the provision of the Medical Services nor the terms of the Agreement are intended to create an employment relationship between the Company’s Doctor(s) or Medical Professional(s) and the NHS Entity.
2.3 – Details of the Fee and duration of each Assignment shall be detailed in the details of Assignment provided by the Online Portal used by the NHS Entity. Separate details of each Assignment will be provided by the Online Portal used by the NHS Entity and shall be issued by the NHS Entity for every Assignment. Each Assignment shall constitute a separate Agreement.
2.4 – Without prejudice to clause 3.1, the Agreement may be transferred, sub-contracted or assigned to a third party by the NHS Entity or the Company provided that the prior written consent of the other party is obtained (such consent will not be unreasonably withheld or delayed).
2.5 – The NHS Entity has no obligation to offer future contracts to the Company and if it does make any such offer, the Company is not obliged to accept it.
2.6 Nothing in the Agreement shall prohibit the Company from providing its services, or those of its Doctors or Medical Professionals, to any other person or organisation.
3. ASSIGNMENT
3.1 – The Company is obliged to undertake the Medical Services by providing such suitably qualified Doctor(s) or Medical Professional(s) as the Company considers appropriate, subject to the Doctor or Medical Professional being previously approved by the NHS Entity before Medical Services are undertaken by the Company.
3.2 – It is recognised that the Company (and Doctors or Medical Professionals) are engaged so that the NHS Entity’s patients can benefit from those medical healthcare services. In order that the Doctor or Medical Professional can most fully use their skill and expertise for the benefit of the NHS Entity’s patients, the Doctors or Medical Professionals (and the Company) shall retain reasonable autonomy in the method of performing the Medical Services, but in doing so, it shall co-operate with the NHS Entity and shall accept all reasonable and lawful instructions in relation to the scope of the Medical Services from the NHS Entity.
4. TIMESHEETS
4.1 – The NHS Entity shall provide timesheets to the Doctor or Medical Professional and the Company shall use reasonable endeavours to procure that the Doctor or Medical Professional complete the timesheets each day the Medical Services are provided to the NHS Entity, detailing the number of hours worked.
4.2 – At the end of each week of the Assignment (or at the end of the Assignment where an Assignment is for a period of less than one week or is completed before the end of a week) the Company shall deliver to the NHS Entity the timesheets duly completed indicating the hours for which the Company provided the Medical Services in the preceding week and signed by an Authorised Representative.
4.3 – Signature of the timesheet by the Authorised Representative will constitute acceptance that the Medical Services have been provided for the hours indicated and to an acceptable standard.
4.4 – In the event that the NHS Entity enters into a self-billing agreement with the Company, the timesheet must not be accompanied by an invoice from the Company for the amount due from the NHS Entity to the Company for the hours worked in that month. Where there is no self-billing agreement in place, the Company’s invoice should bear the Company’s name and company registration number.
5. FEES
5.1 – The Company shall receive payment from the NHS Entity for an Assignment at the rate specified in the details of Assignment provided by the Online Portal used by the NHS Entity. The payment will be in line with the role undertaken and the NHS pay scale applicable to that role as per The Medical and Dental National Terms and Conditions/Terms and Conditions – Consultants England (2003) Handbook (as amended from time to time), which will be confirmed when the Assignment is agreed by the NHS Entity.
5.2 – The NHS Entity shall settle all invoices rendered by the Company relating to the provision of Medical Services by the Doctor or Medical Professional within seven (7) days.
5.3 – All payments shall be made to the Company.
6. LIABILITY
6.1 – It is acknowledged that the Doctor or Medical Professional is providing Medical Services to the NHS Entity and as a result any liability for medical negligence or malpractice will fall within the scope of the NHS Indemnity provisions and shall not be passed onto the Company. Further, and to the extent permitted by law, the NHS Entity shall be liable to the Company for any claims for loss, damage, injury or expense incurred by the Company arising directly from any negligent or willful acts or omissions of the NHS Entity in respect of the Medical Services, or from a breach of the terms of the Agreement.
6.2 – Neither party shall be under any liability to the other party for any indirect economic loss, consequential loss or damage (whether loss of profit, loss of business, depletion of goodwill or otherwise) costs or expenses or other claims for consequential losses suffered by the other party howsoever caused by the other party including but not limited to the negligence of the other party or as a result of a breach of the Agreement.
6.3 – The Company shall maintain adequate employer’s liability and public liability insurance for the duration of the Agreement and shall make a copy of such policies available to the NHS Entity upon reasonable request.
6.4 – In the event that the Company submits an invoice to the NHS Entity where the NHS Entity has entered into a self-billing agreement with the Company, the Company agrees to fully reimburse the NHS Entity for all payments made to the Company in relation to the invoice which it has submitted outside of the self-billing agreement within 5 Business Days of payment being received and agrees to indemnify the NHS Entity in relation to all costs, expenses and liabilities incurred by the NHS Entity in reclaiming such payments from the Company.
7. OBLIGATIONS OF THE COMPANY
7.1 – The Company shall:
7.1.1 – take all reasonably practicable steps to ensure that its Doctor or Medical Professional and any other person affected by the Doctor’s or Medical Professional’s actions on the Assignment are not unduly exposed to risks to their health or safety over and above those risks ordinarily identified in a hospital similar to that operated by the NHS Entity;
7.1.2 – ensure, so far as is reasonably practicable, that the Doctor or Medical Professional complies with any applicable health and safety policies and procedures which are in force at the premises where the Medical Services are being performed during the Assignment;
7.1.3 – provide the NHS Entity with any progress reports which may be reasonably requested;
7.1.4 – comply with all the requirements of VAT legislation and the Companies Act 1985;
7.1.5 – comply with the Reporting of Diseases and Dangerous Occurrences Regulations 1995; and
7.1.6 – undertake reasonable endeavours to ensure that its Doctor(s) or Medical Professional(s) act with integrity and conduct themselves in an appropriate and professional manner, including but not limited to ensuring that its Doctor or Medical Professionals do not attend work under the influence of, or smelling of, alcohol or illegal drugs and/or being, or appearing to be, in possession of firearms or other offensive weapons.
7.2 – The Company shall be responsible for paying statutory sick pay, holiday pay, statutory maternity pay, paternity pay or adoption pay to its Doctor or Medical Professional providing the Medical Services under the Agreement.
7.3 – The NHS Entity shall not be responsible for providing any training to the Company or its Doctor(s) or Medical Professional(s). It is acknowledged that the Company is solely responsible for maintaining the Continuing Professional Development of its Doctor(s) or Medical Professional(s).
7.4 – The Company shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act of 2010. Without prejudice to the generality of this clause, the Company shall not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010.
7.5 – The Company acknowledges that professional registration is an essential condition of the Company’s engagement or continued engagement in the National Health Service and specifically the NHS Entity. It is therefore necessary for the Company (or its Doctor(s) or Medical Professional(s)) to produce evidence of that registration on demand and to renew that registration as required at its own cost.
7.6 – In order to work within the Clinical Governance framework, and all UK and EU legislation, the NHS Entity has procedures in place to ensure that it recognises the levels of competence of medical staff and that its medical staff are educated and trained to develop their abilities. The NHS Entity expects the Company and its Doctor(s) or Medical Professional(s) to comply with these procedures at all times and work within the Doctor’s or Medical Professional’s competence. These procedures encompass the competent use of diagnostic and therapeutic equipment. At all times, the Doctor’s or Medical Professional’s actions must be in the best interests and well-being of patients and in consideration of other members of the NHS Entity’s staff. If a situation arises where the Company has concerns about its Doctor’s or Medical Professional’s own competence or ability to perform the Medical Services to an acceptable level, the Company must inform the NHS Entity immediately.
8. OBLIGATIONS OF THE NHS ENTITY
8.1 – The NHS Entity shall:
8.1.1 – notify the Company within seven (7) days in the event that the Doctor or Medical Professional is required to work outside the UK and provide details of any additional requirements including but not limited to medicals, visas and insurance;
8.1.2 – make available, free of charge, such working space and facilities at the premises as the Doctor or Medical Professional may reasonably require in order to perform the Medical Services; and
8.1.3 – provide to the Company access to the premises and such of its information, records and other materials as may be reasonably necessary for the Doctor or Medical Professional to perform the Medical Services.
8.2 – The NHS Entity shall ensure that any information provided by any Doctor providing the Medical Services in relation to an accident or incident at work is passed on to the Company so that the Company can comply with its obligations under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995.
9. TAX AND NATIONAL INSURANCE CONTRIBUTIONS
9.1 – The Company shall be responsible for any PAYE, Income Tax and National Insurance contributions (“NICs”) and any other employment taxes and deductions payable in respect of its Doctor(s) or Medical Professional(s) under the terms of this Agreement.
9.2 – Where any Doctor or Medical Professional provided by the Company to the NHS Entity is liable to be taxed in the United Kingdom and/or liable to pay National Insurance Contributions (NICs) in respect of income the Doctor or Medical Professional receives from the Company which may be derived from the Fees paid by the NHS Entity under this Agreement, the Company shall ensure that both the Company and the Doctor or Medical Professional:
9.2.1 – complies with the Income Tax (Earnings and Pensions) Act 2003 (ITEPA) and all other statutes and regulations relating to income tax;
9.2.2 – complies with the Social Security Contributions and Benefits Act 1992 (SSCBA) and all other statutes and regulations relating to NICs;
9.3 – The NHS Entity may, at any time during the term of this Agreement, request the Company or the Doctor or Medical Professional to provide information which demonstrates how the Company and the Doctor or Medical Professional complies with clause 9.2 above or why clause 9.2 does not apply to it.
9.4 – A request under clause 9.3 above may specify the information which the Company and/or the Doctor or Medical Professional must provide to the NHS Entity and the period in which that information must be provided.
9.5 – The NHS Entity may supply any information which it receives in accordance with this clause 9 to the Commissioners of Her Majesty’s Revenue and Customs for the purposes of the collection and management of revenue for which they are responsible.
9.6 The parties acknowledge and agree that the invoiced amount and/or the rate advertised are subject to the deductions listed in this clause 9 but this shall not mean that Employers’ National Insurance Contributions are paid by any Doctor or Medical Professional involved in the provision of the Medical Services.
CONFIDENTIAL INFORMATION
9.6 – The Company shall use reasonable endeavours to ensure that its Doctor or Medical Professional will not during the continuance of the Agreement or afterwards (unless authorised to do so by the NHS Entity) use for their own benefit or any other person, or disclose to any other person or through any failure to exercise all due care and diligence cause or permit any unauthorised disclosure of any Confidential Information which it has obtained by virtue of the Assignment or in respect of which the NHS Entity is bound by an obligation of confidence to a third party.
9.7 – For the avoidance of doubt, clause 10.1 shall not apply in respect of any Confidential Information which is in or becomes part of the public domain, other than through a breach of the obligations of confidentiality set out in this Agreement, or to the extent that the Company or its Doctor or Medical Professional are required to disclose Confidential Information by any applicable law, governmental order, decree, regulation, licence and/or rule.
9.8 – The Company shall use reasonable endeavours to ensure that the Doctor or Medical Professional will (at the expense of the NHS Entity) deliver up to the NHS Entity (as directed) at the end of the Assignment all documents (and copies) and materials belonging to the NHS Entity which are in its possession or control.
10. DATA PROTECTION
10.1 – The parties acknowledge that for the purposes of Data Protection Legislation:
10.1.1 – Where the Company processes Data provided by the NHS Entity for the purpose of fulfilling this Agreement (for example, processing Data Subjects’ names and telephone numbers for the purposes of the Company employing them, or Sensitive Data belonging to the NHS Entity for the provision of Medical Services), the Company is acting as a Data Processor and shall only process such Data in accordance with this Agreement, the lawful instructions of the NHS Entity (acting as Data Controller) and for the purpose for which it has been supplied to the Company; and
10.1.2 – Where the Company processes Data for its own purposes (for example, in an employment relationship between the Company and the Data Subject), it is acting as a Data Controller and will ensure that it has a lawful basis for its processing activities.
10.2 – Where the Company acts in the capacity of a Data Processor in accordance with clause 11.1.1 above, it shall:
10.2.1 – process the Data only on documented instructions from the NHS Entity (including instructions contained in this Agreement), including with regard to transfers of Data to a third country or an international organisation, unless required to do so by law to which the Company is subject; in such a case, the Company shall inform the NHS Entity of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
10.2.2 – ensure that persons authorised to process the Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
10.2.3 – take all measures required pursuant to Article 32 of GDPR;
10.2.4 – respect the conditions referred to in paragraphs 2 and 4 of Article 28 of GDPR for engaging another Data Processor;
10.2.5 – taking into account the nature of the Processing, assist the NHS Entity by appropriate technical and organizational measures, insofar as possible, for the fulfilment of the NHS Entity’s obligation to respond to requests for exercising the Data Subject’s rights laid down in Chapter III of GDPR;
10.2.6 – assist the NHS Entity in ensuring compliance with the obligations pursuant to Articles 32 to 36 of GDPR, taking into account the nature of Processing and the information available to the Company;
10.2.7 – at the choice of the NHS Entity, delete or return all Data to the NHS Entity after the end of the provision of services relating to Processing, and delete existing copies unless law requires storage of the Data; and
10.2.8 – make available to the NHS Entity all information necessary to demonstrate compliance with the obligations laid down in Article 28 of GDPR and allow for audits, including inspections, conducted by the NHS Entity or another auditor mandated by the NHS Entity upon reasonable request during the Company’s normal working hours.
10.3 – The parties agree to take account of any guidance issued by the Information Commissioner’s Office. Either party may on not less than 30 calendar days’ notice to the other party amend this Agreement to ensure that it complies with any guidance issued by the Information Commissioner’s Office.
11. TERMINATION
11.1 – Either the NHS Entity or the Company may instruct the other party to terminate an Assignment at any time upon giving the other party one (1) hours’ notice in writing.
11.2 – Either party may without notice instruct the other party to terminate an Assignment or this Agreement:
11.2.1 – if the other party is in material breach of its obligations under this Agreement which cannot be remedied or commits a breach of a material obligation which can be remedied and fails to remedy it within thirty (30) minutes of receiving notice requiring it to be remedied; or
11.2.2 – if the other party passes a resolution for its winding up or a court of competent jurisdiction makes an order for the party’s winding up or dissolution, or an administrator or receiver is appointed in relation to the other party or if the other party makes an arrangement or composition with its creditors generally.
11.3 – If the Doctor or Medical Professional is unable to perform the Medical Services for any reason, and a suitable substitute cannot be found then the Company (either directly or via the Employment Agency who introduced the Company, Doctor or Medical Professional to the NHS Entity) should inform the NHS Entity as soon as is reasonably practicable. In the event that the Company cannot find a substitute for the Doctor or Medical Professional and notice of the same has been given to the NHS Entity, the NHS Entity shall be able to terminate the Assignment with immediate effect provided that the Company receives all Fees due up to and including the date of termination of the Assignment.
11.4 – The NHS Entity may terminate an Assignment if, in the event of a request being made in accordance with clause 9.3 above:
11.4.1 – The Company and/or the Doctor or Medical Professional fails to provide information in response to the request within the time period specified in the request or, where no period is specified within the request, within a reasonable period of time;
11.4.2 The Company and/or the Doctor or Medical Professional provides information which is inadequate to demonstrate either how the Company and/or Doctor or Medical Professional complies with clause 9 above, or why clause 9 above does not apply to the Company and/or Doctor or Medical Professional;
11.4.3 – In the event of a request being made in accordance with clause 9.3 above, the Company and/or Doctor or Medical Professional fails to provide the information specified in the request within the specified period; or
It receives information which demonstrates that the Company and/or Doctor or Medical Professional are not complying with the obligations contained within clause 9.
12. NOTICES
12.1 – Any notice or communication under the Agreement shall be in writing and shall be delivered personally or sent by email (to addresses usually associated with the Company (but not the Doctor or Medical Professional) or NHS Entity), by first (1st) class pre-paid post or by facsimile transmission to the party due to receive the notice or communication to its registered office or to such other address or facsimile number as a party may have notified to the other party.
12.2 – Any such notice will be deemed to have been effected:
12.2.1 – if delivered personally, at the time when left at the registered office or such other address as shall be notified;
12.2.2 – if delivered by email within 2 hours of the beginning of a normal Business Day
12.2.3 – if delivered by post, two (2) Business Days after posting;
12.2.4 – if sent by facsimile transmission at the time of transmission or, if the time of transmission is outside normal working hours, upon the next Business Day.
12.3 – E-mail notice shall not be valid for the purposes of the Agreement.
13. FORCE MAJEURE
13.1 – For the purpose of the Agreement, Force Majeure Event means an event beyond the reasonable control of the affected party including without limitation, fire, storm, tempest, war, hostilities, rebellion, insurrection, military or usurped power, civil war, labour lock-outs, strikes and other industrial disputes, riots, commotion, disorder, decree of Government, non-availability of labour or any other circumstances which adversely affects the performance of the obligations of the Agreement.
13.2 – If either party is prevented, hindered or delayed from or in performing any of its obligations under the Agreement (other than a payment obligation) by a Force Majeure Event it shall promptly notify the other party of the nature and extent of the circumstances in question and the effects of the Force Majeure Event on its ability to perform its obligations under the Agreement.
13.3 – Notwithstanding any other provision of the Agreement, neither party shall be deemed to be in breach of the Agreement or otherwise be liable to the other parties for any delay in performance or the non-performance of any of its obligations under this Agreement (other than a payment obligation) to the extent that the delay or non-performance is caused by the Force Majeure Event of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
13.4 – If the Force Majeure Event continues for more than one month, the parties shall enter into discussions in good faith with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable.
14. GENERAL
14.1 – If any provision of the Agreement is held by a court or other competent jurisdiction to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Agreement and the remainder of the provision in question shall not be affected.
14.2 – Any waiver by either party of any breach or any default under any provision of the Agreement does not constitute a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.
14.3 – Nothing in this Agreement is intended to make the Company, Doctor or Medical Professional an employee, worker, officer, partner or agent of the NHS Entity.
15. THIRD PARTY RIGHTS
15.1 – Nothing in the Agreement is intended to confer on any person any right to enforce any term of the Agreement which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.
16. LAW AND JURISDICTION
16.1 – The Agreement shall be governed by and construed in accordance with the laws of England and Wales and all disputes, claims or proceedings between the parties relating to the validity, construction or performance of the Agreement shall be subject to the exclusive jurisdiction of the Courts of England and Wales.