The Newcastle upon Tyne Hospitals NHS Foundation Trust. Employment Policies and Procedures. Ad-Hoc Appointments Policy

Transcription

1 The Newcastle upon Tyne Hospitals NHS Foundation Trust Employment Policies and Procedures Ad-Hoc Appointments Policy Version No.: 3.1 Effective From: 31 March 2015 Expiry Date: 31 March 2016 Date Ratified: 11 March 2015 Ratified By: Employment Policies & Procedures Consultative Group 1. Introduction 1.1 It may be necessary for the Trust to make temporary/ad-hoc appointments from time to time to ensure services are delivered effectively. Such appointments may include: a) the use of a consultancy firm b) the engagement of a self-employed contractor c) the engagement of a worker through a limited company or other body, including their own 1.2 A manager wishing to make such an appointment must follow the appropriate procedure outlined in Appendix 1 or Appendix 2 dependent upon the individual s employment status. Depending upon the arrangements the manager may also need to refer to one of the following Trust policies: Policy Regarding Use of Contractors Locum Appointment Procedure (Medical & Dental) Agency Worker Booking Procedures 1.3 All orders for the provision of services must be placed by the Supplies Department for the expected period of the engagement and appropriately authorised. 1.4 Competitive quotes and/or tenders must be undertaken in accordance with the Trust s Corporate Governance Manual (available on the intranet) which includes Standing Financial Instructions and Standing Orders see Reservation of Powers to the Board and Delegation of Powers, Section C, Detailed Scheme of Delegation, Part 6: Quotation, Tendering & Contract Procedures. 1.5 All items concerning Finance must be carried out in accordance with Corporate Governance see Reservation of Powers to the Board and Delegation of Powers, Section C, Detailed Scheme of Delegation, Part 7: Engagement of Consultancy, Legal, Agency and Bank Staff not on the Establishment (within available funds). This outlines the lowest level to which authority can be delegated. Delegation to lower levels is only permitted with Page 1 of 27

2 written approval of the Chief Executive who will, before authorising such delegation, consult with other Senior Officers as appropriate. Managers must ensure they are familiar with the requirements of Part 7 prior to commencing an engagement process. 1.6 Prior authorization from the Finance Director is required if it is proposed to engage a consultancy, organisation or individual for more than 6 months at a daily rate of more than When an individual carries out work for the Trust on an ad hoc basis, difficulties can arise when assessing whether the individual is employed or self-employed for the purposes of HM Revenue & Customs. 1.8 It is important that the individual is treated correctly as the Trust may be required by HM Revenue & Customs to pay assessed employee s PAYE and NI contributions and Employer s NI contributions on a retrospective basis that might extend over several years. 1.9 All workers engaged with the Trust must be issued with a contract/letter of engagement. Model letters of engagement are available at appendix 4 (for self-employed) and 5 (for Consultants) 2. Scope This policy applies to any ad-hoc appointment made within the Trust. 3. Aims To clarify what managers must consider when appointing an individual to undertake ad-hoc work for the Trust. 4. Duties (roles and responsibilities) 4.1 The Executive Team is accountable to the Trust Board for ensuring Trust-wide compliance with policy. 4.2 Directorate managers, heads of service and clinical directors are responsible to the Executive Team for ensuring policy implementation. 4.3 Managers are responsible for ensuring policy implementation and promoting awareness of this policy amongst their employees. 4.4 Employees are responsible for complying with this policy 5. Definitions Consultancy - a professional practice that gives expert advice within a particular field. Page 2 of 27

3 Self-employment - a self-employed individual earning income through conducting profitable operations from a trade or business that they operate directly. Personal Service Company - a limited company that typically has a sole Director, the contractor, who owns most or all of the shares. The personal service company generally supplies professional services either directly or via an agency. The professional services are delivered by the contractor who is also the owner and Director of the business. 6. Determination of Employment Status 6.1 The question of employment status is critical to how tax is paid, how national insurance contributions are to be paid and the extent to which the employer is vicariously liable for any wrongful acts of the individual. In all cases, the appointing manager must be able to demonstrate that due consideration has been given to the issue of employment status. The manager should use the HMRC s online Employment Status Indicator (ESI) tool to determine if the worker is classed as self-employed or an employee for the purposes of tax. The following guidance should also be used; An individual can be self-employed and have VAT registration but still be deemed an employee of the Trust for the service being performed It is the nature of the service being performed which determines the employment status, and not the status of the individual The basic distinction to be made is to determine whether the individual is engaged under a contract of service (indicative of employment) or a contract for services (indicative of self-employment) If the terms of the contract are written it should make clear whether the contract is of service or for service. If the contract refers to an individual performing duties this is a strong indicator of employment If the hours of work are set then this is a strong indication of employment If the individual provides their services exclusively to the Trust it is highly likely the HM Revenue & Customs would regard the individual to be an employee, whereas if the individual can demonstrate that they are available to whoever is prepared to pay for their services the individual is more likely to be regarded as self-employed A self-employed individual usually agrees a fee for the work before the work starts. An employee is more likely to be paid a salary or paid an hourly, daily or weekly rate If the individual provides major pieces of equipment to perform the work this can be indicative of self-employment. Page 3 of 27

4 6.1.9 If an individual is obliged to perform the service personally this is an indication of employment, but if they are able to send a substitute or they employ staff this is more indicative of self-employment If it can be established that the individual takes genuine financial risk and can increase profits or suffer losses this is a strong indication of self-employment. This may result from the agreement of a fixed price before work commences If a contracted individual can exercise some control over how and when the work is done, and is required to correct unsatisfactory work, the person is likely to be self-employed. 6.2 The manager should retain evidence of the outcome of the ESI check by saving a copy of the printer-friendly version of the ESI result screen bearing the 14 digit ESI reference number and the Enquiry Details screen. A copy of the written contract (if available) in relation to the engagement should also be retained with any other documentation used in completing the ESI. 6.3 If the outcome of the ESI tool identifies the individual as an employee, the arrangement intended with the individual must not proceed unless they are employed by the Trust on a contract of employment, or there is an alternative way to engage their services. 7. Seeking Assurance relating to the Individual Tax and NIC Obligations 7.1 Where a manager engages any consultancy, organisation or individual (including agency worker) for more than 6 months duration, for more than a daily rate of 220, the manager must seek assurance about the tax and NICs obligations before the engagement starts. 7.2 To ensure assurances are obtained all new contracts or contract renewals/ extensions meeting the above criteria must include clauses ensuring the Trust has the ability to seek assurances about the individual s tax and NIC obligations. This also applies to letters of engagement (Appendices 4 and 5). The clause must also provide the right to terminate the contract if evidence is not provided upon request Self-employed Where the individual is classed as self-employed the Manager should confirm that the worker is registered to pay tax. Confirmation can be obtained by providing their previous year s business accounts and filed tax return, or a copy of form SA250 as evidence that they have registered as self-employed with HMRC Employed by the Trust If the individual is classed as an employee they should be put onto the Trust s payroll Employed by an external company Where the individual is working through an agency, limited company or other organization, is paid Page 4 of 27

5 through their payroll and is having PAYE and NICs deducted at source, then the individual will be able to provide evidence that all of the monies paid by the Trust is going through that company/organisation and they are receiving/withdrawing it with PAYE/NICs deducted at source. This can be evidenced by the production of their payslips which will show the salary, and PAYE and NICs deductions. This test also applies to those on secondment whose parent organisation is reimbursed for their salary. 7.3 In all circumstances, the manager must retain copies of the information provided by individuals as evidence as part of the assurance process. 8. Existing Ad-Hoc Appointments 8.1 Mangers must apply the provisions of sections 6 and 7 above to all existing contracts. 8.2 Managers should review existing contracts to ensure they meet the criteria and contracts should be varied where appropriate to include the provisions. Where individuals do not agree, advice should be taken from the HR Department. 9. Common circumstances 9.1 Common circumstances which currently occur and are included under the provisions of this policy are: a) Lecturers being paid fees b) Consultancy charges c) Ad-hoc sessions for miscellaneous reasons d) Project management 9.2 Guidance received from HMRC regarding visiting lecturers indicates that if an individual is engaged for a one off or irregular lecture(s), then the engagement can be treated as self-employed. However, should the lecturer be engaged to perform several lectures on a regular basis over a period of a few weeks or months then this would be classed as employment. 9.3 Many of the individuals who perform these duties feel that they should be treated as self-employed and that they will be responsible for their own tax and NIC. Managers must refer to the guidance notes appended to this policy and notify the Recruitment Control Group of the views of the individual. 10.Pre-employment checks 10.1 Employed and self-employed individuals cannot commence work in the Trust until all pre-engagement checks are carried out and satisfied in accordance with the NHS Employment Check Standards. Failure to evidence all of the required checks will result in the offer of work being withdrawn. Page 5 of 27

6 10.2 Where an individual is being engaged directly it is the manager s responsibility to ensure all checks are undertaken and evidenced on file. For further information and advice refer to Manager's Quick Guide to pre-employment checks Where the individual is employed by another company/organisation assurance must be sought in accordance with the provisions of the Trusts Policy Regarding Use of Contractors. 11.Training Training will be provided by the Human Resources Department to managers following implementation of the policy. 12.Equality and diversity The Trust is committed to ensuring that, as far as is reasonably practicable, the way services are provided and the way staff are treated reflects their individual needs and does not unlawfully discriminate against individuals or groups. This policy has been properly assessed. 13.Monitoring compliance with the policy Standard / Process / Issue Monitoring will include reporting of information from payroll to ascertain those appointed on an ad hoc basis are paid and taxed in accordance with their status. Monitoring and Audit Method By Committee Frequency Reporting of Director of Heads of Annually information Human Human from payroll Resources Resources and from Meeting personal files A summary of the number and type of contracts for service issued by the Human Resources Department will go to the Executive Team on annual basis. 14.Consultation and review of this policy This policy has been reviewed in consultation with the Employment Policies and Procedures Consultative Group Page 6 of 27

7 15.Implementation of the policy (including raising awareness) A summary of the key changes will be notified to managers following implementation. Further advice and guidance will be available from the Human Resources department. 16.References 1) NHS Employment Checks Standards available at checks/employment-check-standards/pages/employment-check- Standards.aspx 2) HM Revenue and Customs available at 17.Additional documents Procedure for Banding of Posts Recruitment and Selection (Junior Medical and Dental Trust Doctor Posts) Recruitment and Selection (Senior Medical and Dental) Recruitment and Selection (Non-Medical) Induction Policy Policy Regarding Use of Contractors Locum Appointment Procedure (Medical & Dental) Page 7 of 27

8 Appendix 1 Ad-Hoc Appointments Procedure Employed 1. Managers must produce a job description for the role, please refer to the Human Resources page on the Trust s Intranet site for the standard job description template. 2. Managers must seek approval to recruit to the role through the Recruitment Control Group (RCG). For further information relating to the RCG process, please refer to the information and forms on the Human Resources page on the Trust s Intranet site. 3. Where RCG approval has been obtained, managers must ensure the job description is evaluated by a job evaluation panel. Managers should refer to the Trust s Procedure for the Banding of Posts. 4. When the job description has been banded managers have a responsibility to follow the process detailed in the relevant Trust Recruitment & Selection Policy. 5. Managers must ensure the individual is correctly inducted to the organisation, and should refer to and follow the process in the Trust s Induction Policy. Managers must notify the Staff Development Team via the electronic form on the Staff Training and Development page of the Trust s Intranet site that the appropriate induction has taken place. Page 8 of 27

9 Appendix 2 Ad-Hoc Appointments Procedure Self-Employed Where an individual is self-employed managers must ensure they have the appropriate authorisation to bring the individual into the Trust by seeking approval through the Recruitment Control Group (RCG). For further information relating to the RCG process refer to the information and forms on the Human Resources page on the Trust s Intranet site. The manager should use the HMRC s online Employment Status Indicator tool to determine if the worker is classed as self-employed or an employee for the purposes of tax. Where the individual is not being paid through Trust payroll and is being engaged for more than 6 months duration (including a combination of consecutive appointments) for more than a daily rate of 220, the manager must seek assurance about the individual s tax and NICs obligations as per section 7 above. Managers must ensure the individual is appropriately registered as self employed with HM Revenue Customs. In order to achieve this, the form attached (Appendix 3) should be completed and retained locally, by the hiring manager, to demonstrate due diligence in the event of an inspection by HM Revenue and Customs. The Manager must ensure that all appropriate pre-employment checks are conducted in accordance with the NHS Employment Check Standards. Managers should refer to the guidance held on the Human Resources page on the Trust s Intranet site, titled Managers quick guide to the pre-employment check standards. If an individual is self-employed they will submit an invoice for work undertaken. The manager responsible for the engagement must note on the invoice whether the individual was engaged on a self-employed basis, and if self-employed must write on the invoice engagement under contract for services. The invoice will then be paid by Accounts Payable Section accordingly. Managers must ensure the individual is correctly inducted to the organisation, and should refer to and follow the process in the Trust s Induction Policy. Managers must notify the Staff Development Team via the electronic form on the Staff Training and Development page of the Trust s Intranet site that the appropriate induction has taken place. Page 9 of 27

10 Appendix 3 Appointment of Consultants and Other Suppliers to provide Non-Medical Services HM Revenue and Customs have set out specific rules for determining whether or not an individual contracted to undertake work on a personal basis should be treated as an employee or as a self-employed for income tax and national insurance purposes. The rules may be found at: The Trust must therefore take steps to ensure that a consultant or other supplier of personal services meets HMRC s indicators that confirm that a contractor is self-employed. ======================================================================= If you are already employed by a limited company registered with HM Revenue and Customs, please simply enter the company s name and PAYE reference below; Company Name PAYE Reference Signed:... Date:.. ======================================================================= If you are self-employed or a member of a partnership, please complete and sign the following declaration to confirm that you have registered for income tax and national insurance with HM Revenue & Customs. Contractor s Name: Business Address: Post Code:. Declaration: I confirm that I am registered for income tax and national insurance with HM Revenue & Customs. My National Insurance number is: Signed:... Date:.. ======================================================================= Received on behalf of the Trust by:. Department: Date:. Page 10 of 27

11 Appendix 4 Model Letter of Engagement Self-Employment Strictly Private & Confidential Dear (add details) This contract for services is made on date Between: The Newcastle upon Tyne Hospitals NHS Foundation Trust whose registered office is at Freeman Hospital, High Heaton, Newcastle upon Tyne NE7 7DN ( the Trust ); and Name of self-employed contractor of address ( the Contractor ). It is agreed as follows: 1. Definitions In this contract the following words and expressions shall have the following meanings unless the context otherwise requires: Commencement Date: Date Confidential Information: the Trust s secrets or confidential information and extends to all knowledge and information relating to the Trust s business, organisation, finances, clients, patients, suppliers, processes, specifications and technology. Services: the project/services to be performed by the Contractor in the course of his appointment under this contract and which includes details, together with such other related services as may from time to time be required by the Trust Termination Date: the date on which the Contractor s appointment hereunder is terminated. 2. Appointment With effect from the Commencement Date, the Contractor is appointed as a self-employed contractor to the Trust for a period of number weeks/months/years to carry out the Services, such services to be provided using reasonable skill and care. 3. Duties During his appointment, the Contractor agrees: a) To devote such of his time, attention and skill to the business of the Trust as shall, in the opinion of the Trust be necessary for the proper and timely performance of the Services; b) To carry out the Services in an expert and diligent manner and to provide his services to the best of his commercial, technical and creative skill; Page 11 of 27

12 c) To the best of his ability, promptly and faithfully to comply with and observe all lawful and reasonable requests that may from time to time be given to him by the Trust; d) During his appointment, not to undertake any additional activities or accept any other engagements that lead or might lead to any conflict of interest between the Contractor and the best interests of the Trust or in any way diminish or restrict the performance of his duties under this contract; and e) To keep the Trust informed of progress on the Services and in particular to liaise with manager name in respect of the day-to-day performance of the Services. f) Not to accept directly or indirectly any money, gift or other benefit offered to you by any third party in connection with the provision of the services and you undertake immediately to disclose to the Trust the existence of such an offer and all information as it may require in respect of such an offer. While the Contractor s method of working is entirely his own and he is not subject to the control of the Trust, he shall nevertheless comply with all relevant Trust s Policies and Procedures. These are available on the Trust s intranet. 4. Delegation of Work The Trust shall not be obliged to provide the Contractor with any work and the Contractor will not be obliged to accept or perform any work offered, unless and until the Trust has requested and the Contractor has agreed to perform such work. If the Contractor is unable at any time to perform the Services due to circumstances beyond his control, the Contractor may delegate performance of the Services to such suitably qualified and experienced personnel as he may from time to time deem appropriate. This delegation will be subject to the Trust s prior written consent, which will not be unreasonably withheld. If the Trust consents to such delegation, the Contractor must give notice of his intention to delegate and provide details of the name and appropriate qualifications of the delegate. The Contractor must promptly notify the Trust in the case of illness or accident that prevents the performance of the Services in accordance with this contract. 5. Provision of Equipment and Materials The Contractor will be expected to supply all materials and equipment necessary to facilitate the professional performance of contracted duties and services. The Trust may, however, agree to the provision of facilities and equipment on Trust premises where it is considered conducive to the effective performance of the Contractor s duties and responsibilities. 6. Fee A fee of amount per hour/day/week/month together with value added tax thereon (if applicable) shall be payable to the Contractor for the provision of the Services and such fee shall be payable monthly in arrears by number day of the month immediately following the month in which the Services have been performed. The Contractor shall submit an invoice to the Trust on, or as soon as reasonably possible after, the last day of each month detailing the Services provided within that month and the fees due in respect thereof and where he is registered for value added tax shall show any value added tax separately on such invoices. Page 12 of 27

13 In the event that there are periods when there are no Services for the Contractor to perform, the contractor shall not be paid a retainer for these periods. The fee is payable only in respect of Services actually provided. 7. Tax and NIC Liability Where the contractor is liable to be taxed in the UK in respect of consideration received under this contract, it shall at all times comply with the Income Tax (Earnings and Pensions) Act 2003 (ITEPA) and all other statutes and regulations relating to income tax in respect of that consideration. Where the contractor is liable to National Insurance Contributions (NICs) in respect of consideration received under this contract, it shall at all times comply with the Social Security Contributions and Benefits Act 1992 (SSCBA) and all other statutes and regulations relating to NICs in respect of that consideration. The Trust may, at any time during the term of this contract, request the contractor to provide information which demonstrates compliance with the Clauses above or why those Clauses do not apply to it. A request under the above clause may specify the information which the contractor must provide and the period within which that information must be provided. The Trust may terminate this contract if: (a) in the case of a request mentioned in the above clauses the - contractor fails to provide information in response to the request within a reasonable time, or - contractor provides information which is inadequate to demonstrate either compliance or why the above Clauses do not apply to it; (b) the contractor fails to provide the specified information within the specified period, or (c) the Trust receives information which demonstrates that, at any time the contractor is not complying with the above Clauses. The Trust may supply any information which it receives under the above clauses to the Commissioners of Her Majesty s Revenue Confidential and Customs for the purpose of the collection and management of revenue for which they are responsible. 8. Expenses The Contractor shall be entitled to be reimbursed by the Trust for all out-of-pocket expenses wholly, exclusively and properly incurred in the performance of the Services subject to the Contractor providing the Trust with vouchers, receipts or other evidence of actual payment of such expenses and subject to the incurring of expenses being specifically agreed by the Trust in advance. 9. Office facilities The Trust will provide the Contractor with such office facilities and such technical, secretarial, telecommunications and other facilities as it shall deem necessary to enable the Contractor Page 13 of 27

14 effectively to perform the Services. 10. Confidentiality The Contractor hereby agrees that during the course of his appointment under this contract he is likely to obtain knowledge of Confidential Information and accordingly the Contractor hereby undertakes to and covenants with the Trust that: a) He shall not at any time after the Termination Date use or procure the use of the name of the Trust in connection with his own or any other name in any way calculated to suggest that he continues to be connected with the business of the Trust or in any way hold himself out as having such connection; b) He shall not use the Confidential Information other than during the continuance of this contract and in connection with the provision of the Services; and c) He shall not at any time after the date of this contract (save as required by law) disclose or divulge to any person other than to officers or employees of the Trust whose province it is to know the same, any Confidential Information and he shall use his best endeavours to prevent the publication or disclosure of any Confidential Information by any other person. 11. Intellectual Property The Contractor agrees that any intellectual property rights arising out of his performance of the Services vest in the Trust both during his appointment under this contract and after the Termination Date (without limit in time). 12. Delivery up of the Trust s records and property Upon the expiration or termination of his appointment under this contract for whatsoever cause or otherwise on demand at any time, the Contractor shall forthwith deliver up to the Trust or its authorised representatives all keys and any swipe cards, credit cards, computer hardware or software, books, documents, account records and any other records or property (whether written, computer readable or otherwise) which may be in his possession, custody or control and which are the property of the Trust or which otherwise relate in any way to the business or affairs of the Trust and no copies of the same or any part thereof shall be retained by him. He shall then (if required by the Trust) make a declaration that the whole of the provisions of this clause have been complied with. 13. Termination Either party shall have the right at any time to terminate this contract by giving not less than number weeks /months notice in writing to the other party. The Trust reserves the right to pay the Contractor in lieu of notice. In addition, the Trust shall have the right to terminate this contract at any time by summary notice without any payment in lieu in the event of the Contractor: a) Being in material or persistent breach of any of the terms of this contract; b) Having a bankruptcy order made against him or making any arrangement with his creditors or having an interim order made against him; c) Being convicted of any criminal offence other than a minor driving offence under the Road Traffic Acts; Page 14 of 27

15 d) Persistently and wilfully neglecting or becoming incapable for any reason of efficiently performing the Services, including a failure to remedy any fault in work produced within a reasonable period of time of being notified of that fault; or e) Doing any action manifestly prejudicial to the interests of the Trust or which may, in the opinion of the Trust, bring it into disrepute. and the Contractor shall have no claim against the Trust in respect of the termination of his appointment for any of the reasons specified above. 14. Tax liabilities The Trust and the Contractor declare and confirm that it is the intention of the parties that the Contractor shall have the status of a self-employed person and shall be responsible for all income tax liabilities and national insurance or similar contributions in respect of his fees and accordingly the Contractor hereby agrees to indemnify the Trust in respect of any claims that may be made by the relevant authorities against the Trust in respect of income tax and national insurance or similar contributions relating to the Contractor s services under this contract. 15. Warranties The Contractor warrants to the Trust that: a) By entering into this contract he will not be in breach of any obligations to or agreements with any third party; b) He will take out and maintain throughout the term of this contract adequate insurance in respect of public liability insurance coverage to protect himself against any liabilities arising out of this contract and shall produce, on request, a copy of the insurance policy certificate for inspection by the Trust; and c) He will take out and maintain throughout the term of this contract adequate professional indemnity insurance coverage (minimum 5 million cover) to protect himself against any liabilities arising out of this contract and shall produce, on request, a copy of the insurance policy certificate for inspection by the Trust. 16. Data Protection The Contractor and the Trust agree to comply with all applicable data protection legislation, including but not limited to the Data Protection Act 1998 and any amendments thereto. 17. No employment Nothing in this contract shall render or be deemed to render the Contractor an employee or agent of the Trust and the Contractor hereby agrees that he is a self-employed independent contractor and not an employee or agent of the Trust. This contract does not create any mutuality of obligation between the Contractor and the Trust. The Contractor does not qualify for any company benefits from the Trust. 18. Force majeure If either party to this contract is prevented or delayed in the performance of any of their respective Page 15 of 27

16 obligations under the contract by force majeure, then such party shall be excused from performance for so long as such cause or delay shall continue. For the purpose of this contract, force majeure shall be deemed to be any cause affecting the performance of this contract arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of either party and shall include, but not be limited to: a) Strikes, lockouts or other industrial action; b) Civil commotion, riot, act of terrorism, war threat or preparation for war; c) Fire, explosion, storm, flood, earthquake, subsidence, epidemic, bad weather or other natural physical disaster; d) Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and e) Political interference with the normal operations. 19. Entire agreement This contract contains the entire agreement and understanding of the parties in respect of the matters contained or referred to in it and there are no promises, terms, conditions or obligations oral or written, express or implied other than those contained in this contract. extinguishes all previous agreements between the parties relating to the subject matter hereof. 20. Variation No variation or amendment of this contract or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of both parties. 21. Survival of causes of action The termination of this contract howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination. 22. Waiver The failure of any party to insist upon strict performance of any provision of this contract or the failure of any party to exercise any right or remedy to which he is entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of these obligations under this contract. No waiver of any of the provisions of this contract shall be effective unless it is expressly stated to be such and signed by all the parties to this contract. 23. Severability If any provision of this contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this contract shall continue in full force and effective as if this agreement had been signed without the invalid, illegal or unenforceable provision element. Page 16 of 27

17 24. Notices Any notice to be given pursuant to the terms of this contract shall be in writing addressed to the relevant party at the address set out above or such other address as is specified by notice to the other and may be served: a) personally, in which case it is deemed to have been served at the time of service; b) by registered or recorded delivery mail, in which case it is deemed to have been served 48 hours after it was posted; or c) by facsimile transmission (confirmed by post), in which case it is deemed to have been served at the time of transmission. Signed: Date: Designation: For and on behalf of the Trust Signed: Date: Name of contractor Page 17 of 27

18 Appendix 5 Model Letter of Engagement Employed Consultant Strictly Private & Confidential Dear (add details) This agreement is made on [date]. Between: [Name of Employer] whose registered offices are at [address] and [Name of consultant] whose address is at [address] ("You"). It is agreed as follows: 1. Definitions In this agreement the following words and expressions shall have the following meanings unless the context otherwise requires: Board: The board of directors of the Employer for the time being and from time to time or any committee properly delegated powers by it. Commencement date: [ date] Employer secretary: The Employer secretary for the time being of the Employer. Confidential information: the Trust s secrets or confidential information and extends to all knowledge and information relating to the Trust s business, organisation, finances, clients, patients, suppliers, processes, specifications and technology. Directly or indirectly: Whether as principal or agent; whether alone, jointly, in partnership with another or for or on behalf of another; whether as a shareholder, director, agent, principal, partner, consultant, employee or otherwise; or by virtue of providing direct or indirect financial assistance. Fee: The fee payable below as altered from time to time. Normal place of work: [ add] Periods of restriction: "First period of restriction" and "second period of restriction" mean the periods of [six] and [nine] months respectively following the termination of the agreement. Services: Means the work to be provided by you under this agreement and which includes [details] together with such other services as may from time to time be required by the Employer. Term: The period commencing on the commencement date and terminating on the termination date. Page 18 of 27

19 Termination date: The date on which this agreement ends. 2. Scope of agreement This agreement sets out the terms under which you shall provide your services for and at the direction of the Trust at such time or times as may be agreed between you and the Trust on a freelance basis at such time or times as may be agreed between you and the Trust. The Trust shall not be obliged to provide you with any work and you will not be obliged to perform any work unless and until the Trust has requested and you have agreed to perform such work. You agree to perform for the Trust the services. It is specifically agreed that you will devote not less than [one] day per week in the performance of the services and you agree to devote such additional time as may in the opinion of the Trust be necessary to properly perform the services on time. You will consult and collaborate with such persons as the Trust shall from time to time specify in relation to the services and in particular you will liaise with [ add name] in respect of the day-to-day performance of the services. The Trust will reimburse you for all expenses properly, wholly and necessarily incurred by you in the performance of your duties, upon production of all relevant receipts. This agreement shall terminate on the expiry of at least three months' written notice from you or the Trust. 3. Scope of obligations You agree: a) to undertake and provide the services on a first call basis in accordance with any brief and deadline set by the Trust; b) to carry out the services in an expert and diligent manner and to provide your services to the best of your financial accountancy, commercial, technical and creative skill; c) to the best of your ability, promptly and faithfully to comply with and observe all lawful and proper requests which may from time to time be given to you by the Employer; d) in the case of illness or accident preventing the performance of the services in accordance with this agreement, promptly to notify the Trust of such illness or accident; e) at any time, promptly on request, to deliver to the Trust all documents, correspondence, records, films, videotapes, computer hardware and software and other property of the Trust in your possession relating to the services, the Trust, its business and affairs; and f) not to accept directly or indirectly any money, gift or other benefit offered to you by any third party in connection with the provision of the services and you undertake immediately to disclose to the Employer the existence of such an offer and all information as it may require in respect of such an offer. 4. Fee The Trust will pay you the fee, plus VAT if appropriate. You will, if registered for VAT, render to the Employer VAT invoices. The fee shall be paid at the rate of [ ] per month payable in arrears within 30 days of the presentation of a proper tax invoice by you. For the avoidance of any doubt, you are not be entitled to any other fees, income or benefits apart Page 19 of 27

20 from the fees (and any expenses) payable in respect of the services which you may perform. Furthermore, as a consultant, you will be liable for the payment of any tax or social security contributions payable on any fees or expenses paid to you by the Trust. You authorise the Trust to deduct from the fee such sums on account of any losses suffered by the Trust as a result of your proven negligence or breach of duty in your performance of the services and/or in the performance of your duties for or on behalf of the Trust at any time prior to the commencement of this agreement. 5. Tax and NIC Liability Where [named Workers/organisation] are liable to be taxed in the UK in respect of consideration received under this contract, it shall at all times comply with the Income Tax (Earnings and Pensions) Act 2003 (ITEPA) and all other statutes and regulations relating to income tax in respect of that consideration. Where [named Workers/organisation] are liable to National Insurance Contributions (NICs) in respect of consideration received under this contract, it shall at all times comply with the Social Security Contributions and Benefits Act 1992 (SSCBA) and all other statutes and regulations relating to NICs in respect of that consideration. The Trust may, at any time during the term of this contract, request [named Workers/organisation] to provide information which demonstrates compliance with the Clauses above or why those Clauses do not apply to it. A request under the above clause may specify the information which the (named Worker(s)/organisation] must provide and the period within which that information must be provided. The Trust may terminate this contract if: (b) in the case of a request mentioned in the above clauses the - (named Worker(s)/organisation) fails to provide information in response to the request within a reasonable time, or - (named Worker(s)/organisation) provides information which is inadequate to demonstrate either compliance or why the above Clauses do not apply to it; (b) (named Worker(s)/organisation) fails to provide the specified information within the specified period, or (c) the Trust receives information which demonstrates that, at any time the (named Worker(s)/organisation) is not complying with the above Clauses. The Trust may supply any information which it receives under the above clauses to the Commissioners of Her Majesty s Revenue Confidential and Customs for the purpose of the collection and management of revenue for which they are responsible. 6. Office facilities The Trust shall provide you (upon reasonable prior written request) with such office facilities including the provision of secretarial support as it shall deem necessary to enable you to perform the services. Page 20 of 27

21 7. Travel You agree to make such journeys and attend such events on the business of the Trust as may reasonably be required. 8. Relationship Nothing in this agreement shall be construed as constituting the relationship of employer and employee and you hereby represent, warrant and undertake to the Trust that you are an independent contractor and not an employee of the Trust and will bear exclusive responsibility for the discharge of income tax and the payment of national insurance as a self-employed person. You hereby indemnify and shall at all times keep the Trust fully and effectively indemnified in respect of all income tax, national insurance and VAT which is, or may become payable, by the Trust in respect of the fees. The Trust shall be entitled to set off amounts due under such indemnity at any time against sums otherwise payable to you under this agreement. You shall make no other use of the Trust s name except that which may be necessary to identify the fact that you are a consultant to the Trust; in particular you shall not be empowered to make, or attempt to make, any final or binding commitments on behalf of the Trust without the prior express written consent of the board from time to time of the Trust. 9. Insurance As a consultant, you are responsible for all matters relating to your own personal safety and that of your possessions and consequently agree to take out and maintain adequate insurance against any loss or damage which you or your property may suffer during your performance of the services. It is a condition of the contract that you also take out and maintain in force professional indemnity insurance in terms satisfactory to the Trust, and exhibit the policy to the Trust if requested. 10. Termination The Trust shall be entitled upon written notice to you to suspend or terminate this agreement in the event of your incapacity or default. Upon suspension or termination of this agreement the following provisions shall also apply: a) All rights granted to the Trust in respect of work done and services rendered by you and the products of such work and services prior to such suspension or the termination date arising for any reason shall not be prejudiced or affected; b) The Trust shall cease to be liable to pay you the fee during the period of suspension or after the termination date, except for that which has already become due and payable; and c) The Trust may nominate a third party to continue the services. d) Without prejudice to any remedy the Trust may have against you, this agreement may be terminated by the Trust by notice in writing with immediate effect if: e) You wilfully neglect to perform your duties or obligation under this agreement and, in particular, fail to remedy any fault in work produced by you within a reasonable period of time of being notified of that fault; f) You act in any way which in the opinion of the Trust brings or will bring the Trust into disrepute; g) You commit any breach of any of the provisions of this agreement which (if capable of remedy) shall remain unremedied 30 days after notice of such breach has been served by the Trust on you; or Page 21 of 27

22 h) You have at any time become or are unable promptly to perform the services by reason of death, ill health or accident to the extent that the provision to or performance for the Trust of the services would be severely jeopardised. This list is not exhaustive. 11. Confidentiality Subject to the above, you shall during the continuance of this agreement and after the termination date observe strict secrecy as to the affairs and dealings of the Trust and (1) shall not during the term except in the performance of your duties or after the termination date, without the prior written consent of the board, make use of or divulge to any person and (2) during the term shall use your best endeavours to prevent the publication or disclosure of: details of the requirements of contractors (whether they be clients, suppliers, consultants or other contractors) of the Trust, including, without limitation, the fees and commissions charged to or by them and the terms of business with them; details of any advertising, marketing or promotional campaign which the Trust is to conduct; any information relating to: - expansion plans, business strategy, marketing plans and sales forecasts of the Trust - financial information, results and forecasts of the Trust - details of the Employees and officers of the Trust and of the remuneration and other benefits paid to them; - information relating to pitches and tenders contemplated, offered or undertaken by the Trust; - information relating to research activities, inventions, secret processes, designs, formulae and product lines undertaken by or on behalf of the Trust; - confidential reports or research commissioned by or provided to the Trust; - any trade secrets of the Trust including know-how and confidential transactions; and - any information which you are told is confidential and any information which has been given to the Trust in confidence by clients, suppliers or other persons. The restrictions shall continue to apply after the termination of this agreement howsoever arising without limit in time and shall include information in the public domain for so long as you are in a position to use such information more readily than others who have not worked for the Trust. You shall not publish any literature, deliver any lecture or make any communication to the media (including the press, radio, television or the internet) relating to the Trust s business or to any matters with which the Trust may be concerned without the prior written authority of the board. 12. Restrictions You hereby agree with the Trust that you will not: during the term and until the expiry of the first period of restriction directly or indirectly on your own account or for any other person, firm or Employer be concerned or interested in any other business dealing in any products or services the same as or similar to the restricted products or services in the United Kingdom; during the term and until the expiry of the first period of restriction directly or indirectly on your own account or for any other person, firm or Employer be concerned or interested in Page 22 of 27

23 any other business dealing in any products or services the same as or similar to the restricted products or services in any relevant territory; during the term and until the expiry of the first period of restriction directly or indirectly, on your own account or for any other person, firm or Employer in competition with the Trust, perform any services in the same or similar capacity to the services you performed for the Trust during the 12 months prior to the commencement date in relation to any products or services sold, marketed or developed in the United Kingdom which are the same as or similar to the restricted products or services; during the term and until the expiry of the first period of restriction perform any services for the major competitors of the Trust currently known as [add details]; during the term and until the expiry of the first period of restriction directly or indirectly, on your own account or for any other person, firm or Employer in competition with the Trust, perform any services in the same or similar capacity to the services you performed for the Trust during the 12 months prior to the commencement date in relation to any products or services sold, marketed or developed in any relevant territory which are the same as or similar to the restricted products or services; during the term and until the expiry of the first period of restriction, directly or indirectly on your own account or for any other person, firm or Employer in competition with the Trust, perform any services for any named client with which or whom you have had material dealings during the period of 12 months prior to the commencement date in the same or a similar capacity to the services which the Trust has performed for such named client during that period; during the term and until the expiry of the first period of restriction directly or indirectly on your own account or for any other person, firm or Employer in competition with the Trust perform any services for any client with which or whom you have had material dealings during the period of 12 months prior to the commencement date in the same or a similar capacity to the services which the Trust has performed for such client during that period; during the term and until the expiry of the second period of restriction directly or indirectly, on your own account or for any other person, firm or Employer in competition with the Trust, solicit or accept the custom of, canvas or approach a client; during the term and until the expiry of the second period of restriction, induce or attempt to induce any client or supplier of the Trust to cease conducting business with the Trust or to reduce the amount of business conducted with the Trust or adversely to vary the terms upon which its business is conducted with the Trust; during the term and until the expiry of the second period of restriction either on your own account or for any person, firm or Employer directly or indirectly employ any person who has during the 12 months preceding the termination date been a director or senior employee (that is, an employee earning over [add details ]) of the Trust with whom you have had material dealings in the period of 3 months prior to the termination date; until the expiry of the Period of Restriction either on your own account or for any person, firm or Employer, directly or indirectly solicit or entice away or endeavour to solicit or entice away any person who has during the 12 months preceding the termination date been a director or senior employee (earning over [add details ]) of the Trust with whom you have had dealings in the period of 3 months prior to the termination date; without the consent of the Trust, at any time divulge to any person, firm or Employer the contents or nature of or make use of any material of whatsoever nature in which the copyright is owned by the Trust or by any client of the Trust; and after the termination date present yourself or allow yourself to be held out or presented as being in any way connected with or interested in the business of the Trust (unless you remain a director or employee or consultant of the Trust). You shall not induce, procure or authorise any other person, firm, Employer or organisation to do or procure anything that, if done by the executive, would be a breach of any of the provisions Page 23 of 27