“SCALE OF FEES£0 -£9,999 15% of total annual commencing salary£10,000 -£14,999 17.5% of total annual commencing salary£15,000 -£19,999 20.0% of total annual commencing salary£20,000 -£34,999 25.0% of total annual commencing salary£35,000 + 30.0%of total annual commencing salary Should the Worker, having taken up employment; subsequently leave, FPS will allow the following credits; PERIOD OF EMPLOYMENT PERCENTAGE CREDIT Up to 2 weeks 100% credit Not exceeding 3 weeks 60% credit Not exceeding 4 weeks 40% credit Not exceeding 5 weeks 20% credit Not exceeding 6 weeks 10% credit”
“ "Applicant" means the person introduced by us to you for and Engagement including any officer or employee of the Applicant if the Applicant is a limited company or members of our own staff; "Client" means the person, firm or corporate body together with any subsidiary or associated company as defined by theCompanies Act 1985 to whom the Applicant is introduced; "Engagement" means the engagement, employment or use of the Applicant in any capacity by you or any third party on a permanent or temporary basis, whether direct or otherwise; "Introduction" means (i) your interview of an Applicant in person or by telephone following your instruction to us to search for an Applicant' or (ii) our passing to you a curriculum vitae or other information which identifies the Applicant and which leads to an Engagement of that Applicant; "Remuneration" includes salary or fees payments and other taxable (and where applicable, non-taxable) emoluments payable to or receivable by the Applicant for services rendered to or for you.”
“3.4 The fees payable to us by you for an Introduction resulting in an Engagement is calculated in accordance with our accompanying scale of fees on annual Remuneration including all weighting factors at commencement of Engagement. VAT is payable in addition to the fee. 3.5 If there are exceptional circumstances (commission etc) where an annualised pay figure cannot be determined at outset we will agree with you (and confirm in writing) a pay figure on which our fee will be based, before the Introduction. … 3.9 If Remuneration not ascertainable (or agreed in accordance with clause 3.5 above) we will charge a fee calculated in accordance with clause 3.4 on minimum level of remuneration applicable for the position in which Applicant engaged with regard to any information supplied to us by you and/or comparable positions in the market generally for such positions.”
“(1) Any term of a contract between an employment business and a hirer which is contingent on a work-seeker taking up employment with the hirer or working for the hirer pursuant to being supplied by another employment business is unenforceable by the employment business in relation to that work-seeker unless the contract provides that instead of a transfer fee the hirer may by notice to the employment business elect for a hire period of such length as is specified in the contract during which the work-seeker will be supplied to the hirer– (a) in a case where there has been no supply, on the terms specified in the contract; or (b) in any other case, on terms no less favourable to the hirer than those which applied immediately before the employment business received the notice. (2) In paragraph (1), “transfer fee” means any payment in connection with the work-seeker taking up employment with the hirer or in connection with the work-seeker working for the hirer pursuant to being supplied by another employment business. (3) Any term as mentioned in paragraph (1) is unenforceable where the employment business does not supply the work-seeker to the hirer, in accordance with the contract, for the duration of the hire period referred to in paragraph (1) unless the employment business is in no way at fault. (4) Any term of a contract between an employment business and a hirer which is contingent on any of the following events, namely a work-seeker– (a) taking up employment with the hirer; (b) taking up employment with any person (other than the hirer) to whom the hirer has introduced him; or (c) working for the hirer pursuant to being supplied by another employment business, is unenforceable by the employment business in relation to the event concerned where the work-seeker begins such employment or begins working for the hirer pursuant to being supplied by another employment business, as the case may be, after the end of the relevant period. (5) In paragraph (4), “the relevant period” means whichever of the following periods ends later, namely– (a) the period of 8 weeks commencing on the day after the day on which the work-seeker last worked for the hirer pursuant to being supplied by the employment business; or (b) subject to paragraph (6), the period of 14 weeks commencing on the first day on which the work-seeker worked for the hirer pursuant to the supply of that work-seeker to that hirer by the employment business. (6) In determining for the purposes of paragraph (5)(b) the first day on which the work-seeker worked for the hirer pursuant to the supply of that work-seeker to that hirer by the employment business, no account shall be taken of any supply that occurred prior to a period of more than 42 days during which that work-seeker did not work for that hirer pursuant to being supplied by that employment business. (7) An employment business shall not– (a) seek to enforce against the hirer, or otherwise seek to give effect to, any term of a contract which is unenforceable by virtue of paragraph (1), (3) or (4); or (b) otherwise directly or indirectly request a payment to which by virtue of this regulation the employment business is not entitled.”
“TUPE contains no provisions that render an agreement by the client to pay a transfer fee unenforceable. Therefore if the terms between the outgoing employment business and the client contain a transfer fee clause, this does not become unenforceable because of the TUPE transfer. The issue will be determined by the terms of the contract; specifically whether the contract excludes the charging of a transfer fee in the event of a TUPE transfer. … Note that when negotiating new client terms, some clients may seek to specifically exclude the right to charge a transfer fee in the case of a TUPE transfer.”
“ ‘Introduction’ means (i) your interview of an Applicant in person or by telephone following your instruction to us to search for an Applicant' or (ii) our passing to you a curriculum vitae or other information which identifies the Applicant and which leads to an Engagement of that Applicant”
“The engagement or use by a Client of a Temporary Worker or former Temporary Worker introduced by the Employment Business whether for a definite of indefinite period, or the introduction of such Temporary Worker to other employers with resulting engagement … renders the Client subject to the payment of an introduction fee …”
“Clause 6 renders an employer/client, such as CRS, liable to pay an introduction fee if it introduces temporary staff to "other employers" with resulting engagement. As has been observed by [counsel for CRS] in his submissions, "employers" is not a defined term in the agreement. The other parts of the terms and conditions, however, treat CRS as "employer/client" for the purposes of the agreement in respect of both permanent staff and temporary staff. I refer, in particular, to the language of clause 1 under the conditions relating to permanent staff, which refers to the "employer client (hereinafter referred to as the client)", which in this context would be CRS. I also refer to the language of clause 3 under that section, which is implicitly referred to in clause 6 in the section relating to temporary staff for the calculation of the introduction fee. Clause 3 expressly refers to pay and emoluments "payable by the client to the applicant", the applicant in this case being staff. That provision works in the case of an employer/client, such as CRS, or a subsidiary of CRS, or another employer client who directly remunerates staff by making payments to applicant staff. That provision does not, however, work in the case of another employment agency, such as Tudor. In such a case the employer/client does not pay anything to the applicant staff. The agency pays the staff. The employer/client, who hires the temporary workers, pays the agency. Thus, for clause 6 relating to temporary staff to work in conjunction with clause 3 relating to permanent staff, "other employers" in clause 6 has to be construed as referring to an employer/client and cannot be sensibly construed to refer to an agency/employer.”
“The hire or use in any way of the Employee ("the engagement") shall be deemed in the absence of any prior acceptance or agreement, to be acceptance of an agreement to these Terms and Conditions of Business.”
“Whoever holds the pen creates the ambiguity and must live with the consequences”
“Although the party receiving the document knows it contains conditions, if the particular condition relied on is one which is a particularly onerous or unusual term, or is one which involves the abrogation of a right given by statute, the party tendering the document must show that it has been brought fairly and reasonably to the other's attention. “Some clauses which I have seen,” said Denning L.J.: “ … would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.” ”
“29 … it is worth setting out two extracts from the judgment of Longmore LJ in Barclays Bank plc v HHY Luxembourg SARL[2011] 1 BCLC 336 , paras 25 and 26: “25. The matter does not of course rest there because when alternative constructions are available one has to consider which is the more commercially sensible. On this aspect of the matter Mr Zacaroli has all the cards … “26. The judge said that it did not flout common sense to say that the clause provided for a very limited level of release, but that, with respect, is not quite the way to look at the matter. If a clause is capable of two meanings, as on any view this clause is, it is quite possible that neither meaning will flout common sense. In such circumstances, it is much more appropriate to adopt the more, rather than the less, commercial construction.” 30 In my opinion Longmore LJ has there neatly summarised the correct approach to the problem. That approach is now supported by a significant body of authority. As stated in a little more detail in para 21 above, it is in essence that, where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense. For these reasons I prefer the approach of the judge and Sir Simon Tuckey to that of Patten LJ, which is to my mind significantly different on this point.” “25. The matter does not of course rest there because when alternative constructions are available one has to consider which is the more commercially sensible. On this aspect of the matter Mr Zacaroli has all the cards … “26. The judge said that it did not flout common sense to say that the clause provided for a very limited level of release, but that, with respect, is not quite the way to look at the matter. If a clause is capable of two meanings, as on any view this clause is, it is quite possible that neither meaning will flout common sense. In such circumstances, it is much more appropriate to adopt the more, rather than the less, commercial construction.”
“There is no doubt that the first task is to try to ascertain the settlor’s intention, so to speak, without regard to the consequences, and then, having construed the document, apply the test. The court, whose task it is to discover that intention, starts by applying the usual canons of construction; words must be given their usual meaning, the clause should be read literally and in accordance with the ordinary rules of grammar. But very frequently, whether it be in wills, settlements or commercial agreements, the application of such fundamental canons leads nowhere; the draftsman has used words wrongly, his sentences border on the illiterate and his grammar may be appalling. It is then the duty of the court by the exercise of its judicial knowledge and experience in the relevant matter, innate common sense and desire to make sense of the settlor’s or parties’ expressed intentions, however obscure and ambiguous the language that may have been used, to give a reasonable meaning to the language if it can do so without doing complete violence to it. The fact that the court has to see whether the clause is ‘certain’ for a particular purpose does not disentitle the court from doing otherwise than, in the first place, try to make sense of it.”
“The conclusion that a contractual provision is so uncertain that it is incapable of being given a meaning of any kind is one which the courts have always been reluctant to accept, since they recognise that the very fact that it was included demonstrates that the parties intended it to have some effect.”
“The fee payable to the Agent by the Client for the introduction of an applicant is calculated on the annual commencing gross taxable pay and taxable emoluments payable by the Client to the applicants set out in the Scale of Fees shown below. VAT shall be paid in addition. [A table sets out the scale of fees, taking a specified percentage of 'Total Annual Remuneration']”
“Clause 3 expressly refers to pay and emoluments "payable by the client to the applicant", the applicant in this case being staff. That provision works in the case of an employer/client, such as CRS, or a subsidiary of CRS, or another employer client who directly remunerates staff by making payments to applicant staff. That provision does not, however, work in the case of another employment agency, such as Tudor. In such a case the employer/client does not pay anything to the applicant staff. The agency pays the staff. The employer/client, who hires the temporary workers, pays the agency.”
“The employer point is closely connected with the point on the calculation of the introduction fees, to which I now turn. Mr Stembridge [leading counsel for the plaintiff] challenged the conclusion of the judge that the provision for the calculation of the introduction fee, as paid to the temporary workers, was void for uncertainty. In recognition of his difficulties with the language of clause 3, Mr Stembridge said that the legal solution was in implicit or implied terms. He referred us to the principles set out in Chitty on Contracts 27th Ed, Vol 1, page 619 at paragraphs 13-002 - 13-003. He argued, first, that the agency, Tudor, should be substituted for the reference to "client" in clause 3, as it was Tudor which was actually paying the remuneration to the temporary staff. The important point in the calculation of the introduction fee, in accordance with the tables in clause 3, was what remuneration was paid to the applicant staff, what they received, not the identity of the person by whom the remuneration was actually payable. That was what the parties intended. The introduction fee was to be a percentage of the total annual remuneration of the workers. That remuneration did not have to be agreed in the form of an annual sum. It could be annualised from what had been agreed to be paid by the month, by the week or even by the hour. Mr Stembridge argued that his case presented no difficulty. Tudor paid the temporary workers remuneration at the rate of£2.60 an hour. The number of hours should be taken as those worked in the commencement week of the relevant temporary worker. This should be taken as 40 hours a week, in the absence of information provided on this point by CRS. It would then be possible to multiply£2.60 an hour, by 40 hours a week, by 52 weeks a year. That would produce the annualised sum to which the relevant percentage could be applied to arrive at the introduction fee. Mr Stembridge said that it was all a matter of arithmetic, and that the wording of the agreement presented no substantial difficulty. I reject this approach. The alluring journey, which Mr Stembridge invited us to set out on for the calculation of the introduction fee, goes way beyond the legitimate excursions into the implied and implicit forbidden and dangerous territory of invented and imagined contractual obligations. In my judgment, the agency has failed to show that on their true construction, its own terms and conditions provide for a certain, applicable and workable means of calculating an introduction fee in this case. The fact is that, on the ordinary and natural meaning of the language of clause 3, which applies in the case of Permanent Staff without difficulty, it is impossible to apply it, without juggling the words, to reach a sensible result in the case of Temporary Workers. It is simply not possible to say that any remuneration is payable by the employer/client to the staff/applicant in the case of temporary workers who have transferred their allegiance from the agency to Tudor. There is no base on which a calculation under clause 3 can be made. It is not legitimate simply to substitute Tudor for the reference in that clause to a "client". It is also relevant to note that the temporary staff worked for different periods of time, daily and weekly. There is a wide range of hours worked by them. It is not possible, on the findings of fact by the judge, to say that 40 hours a week would be a relevant figure to take. I agree with Mr Randall QC, who argued the case on behalf of CRS, that the different ways in which the implied term for the calculation of the fees has been proposed at different stages of the proceedings is a strong indication of the difficulties in the agency's case. It strongly suggests that the whole exercise of the implied term cannot be properly undertaken in order to give clause 6 the effect which the agency wishes to give it for the fee calculation under clause 3.” [Emphasis added]
“In dealing with this point [that is evidence as to working hours] the judge referred to documentary evidence showing that the hours in fact worked by temporary workers varied enormously from 10 hours or less in some cases, to 45 and 48 hours in other cases. He indicated that there was no direct evidence before him that 40 hours a week was the norm for temporary workers.”
“The general rule as stated by Scrutton L.J. in Abrahams v. Reiach (Herbert) Ltd.[1922] 1KB 477 , CA. , that in an action for breach of contract a defendant is not liable for not doing that which he is not bound to do, has been generally accepted as correct, and in my experience at the Bar and on the Bench has been repeatedly applied in subsequent cases. The law is concerned with legal obligations only and the law of contract only with legal obligations created by mutual agreement between contractors - not with the expectations, however reasonable, of one contractor that the other will do something that he has assumed no legal obligation to do. And so if the contract is broken or wrongly repudiated, the first task of the assessor of damages is to estimate as best he can what the plaintiff would have gained in money or money's worth if the defendant had fulfilled his legal obligations and had done no more.” (Emphasis added)
“The background is however very important. I should in passing say that when, in Investors Compensation Scheme Ltd v West Bromwich Building Society[1998] 1 WLR 896 , 913, I said that the admissible background included "absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man", I did not think it necessary to emphasise that I meant anything which a reasonable man would have regarded as relevant. I was merely saying that there is no conceptual limit to what can be regarded as background. It is not, for example, confined to the factual background but can include the state of the law (as in cases in which one takes into account that the parties are unlikely to have intended to agree to something unlawful or legally ineffective) or proved common assumptions which were in fact quite mistaken. But the primary source for understanding what the parties meant is their language interpreted in accordance with conventional usage: "we do not easily accept that people have made linguistic mistakes, particularly in formal documents". …”
“Charges which represent wages paid are invoiced weekly and are payable within 7 days of the date of FPS's invoice. Any invoice outstanding over 7 days from the date of payment shall carry interest on the balance at the rate of 2 per cent per month or part thereof until payment.”
“31 In our opinion, the law relating to penalties has become the prisoner of artificial categorisation, itself the result of unsatisfactory distinctions: between a penalty and genuine pre-estimate of loss, and between a genuine pre-estimate of loss and a deterrent. These distinctions originate in an over-literal reading of Lord Dunedin's four tests [in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd[1915] AC 79 , HL(E)] and a tendency to treat them as almost immutable rules of general application which exhaust the field. In Legione v Hateley(1983) 152 CLR 406 , 445, Mason and Deane JJ defined a penalty as follows: “A penalty, as its name suggests, is in the nature of a punishment for non-observance of a contractual stipulation; it consists of the imposition of an additional or different liability upon breach of the contractual stipulation …”
“A millionaire may enter into a contract in which he is to pay liquidated damages, or a poor man may enter into a similar contract with a millionaire, but in each case the question is exactly the same, namely, whether the sum stipulated as damages for the breach was exorbitant or extravagant …” 35 But for all that, the circumstances in which the contract was made are not entirely irrelevant. In a negotiated contract between properly advised parties of comparable bargaining power, the strong initial presumption must be that the parties themselves are the best judges of what is legitimate in a provision dealing with the consequences of breach. In that connection, it is worth noting that in the Philips Hong Kong case 61 BLR 41 , 57-59, Lord Woolf specifically referred to the possibility of taking into account the fact that “one of the parties to the contract is able to dominate the other as to the choice of the terms of a contract” when deciding whether a damages clause was a penalty. In doing so, he reflected the view expressed by Mason and Wilson JJ in the AMEV-UDC case 162 CLR 170, 194 that the courts were thereby able to “strike a balance between the competing interests of freedom of contract and protection of weak contracting parties” (citing Atiyah, The Rise and Fall of Freedom of Contract (1979), chapter 22). However, Lord Woolf was rightly at pains to point out that this did not mean that the courts could thereby adopt “some broader discretionary approach”
“The court will protect him by the use of section 5 remission because the uncertainty to that extent was created by the supplier. What he cannot do is to pay nothing at all and expect to escape the high rates of interest imposed by the Act on what on any view is due.”
“(1) Where a claimant has delayed unreasonably in commencing or prosecuting proceedings, the court may exercise its discretion either to disallow interest for a period or to reduce the rate of interest. (2) In exercising that discretion the court must take a realistic view of delay. In the case of business disputes, litigation is for all parties an unwelcome distraction from their proper business. It is not reasonable to expect any party to take every litigious step at the first possible moment, or to concentrate on litigation to the exclusion of all else. Delay should only be characterised as unreasonable for present purposes when, after making due allowance for the circumstances, it can be seen that the claimant has neglected or declined to pursue his claim for a significant period. (3) When determining what disallowance or reduction of interest should be made to mark a period of unreasonable delay, the court should bear in mind that the defendant has had the use of the money during that period of delay.”
“We had never agreed any quarterly NI reconciliations at all with Halfords. There was a stage -- not a stage. There was the one point when the threshold changed in April and there was a reconciliation done for that. Apart from that, I've never met Stacey Lintern. I've never spoke to her, and I've certainly not discussed NI reconciliations going back to where she’s talking about in that email.”
“Apologies for the delay, here is the rate breakdown as discussed in the meeting last week. Warehouse Op Pay Rate£5.50 per hour Charge Rate£7.52 per hour Formula Pay Rate x 12.8% (N.I) x 8.33% (working time directive) + 80p (management fee)”
“As we already make National Insurance payments (12.8%) on TOTAL wage, we would expect you to adjust this to reflect actual NI payments made i.e. for anything over£93 per week.” (iv) An e-mail, dated13th July 2009 , from James Ritchie, of FPS, to Mr Shirley: “As requested the calculation is:- Pay Rate + 12.08% wtd + 12.8% NI + 61p management fee”. (v) An internal Halfords e-mail, dated2nd October 2009 , from Lee Tevlin to Don Tevlin and others, stated: “NI is payed (sic) against all hours there is no accounting for the£110 each employee is allowed before NI contributions are paid.” (vi) FPS’ responses, in December 2009, to questions 9 and 10 of Halfords’ 2009 “Request for Information – Temporary Labour” which stated that: “The majority of our business remains priced on hourly rate per role relative to achieving minimum performance standards. This is broken down into a transparent calculation based upon; - Pay rate + % working time directive + % national insurance contributions + management fee = charge rate. … We feel that the transparent calculation is effectively cost plus …”. (vii) FPS provision of rates to Halfords in the document dated16th March 2010 , mentioned above, referring to “Real NI”. (viii) An e-mail, dated10th October 2011 , sent by Mr Moses to Matthew and Laurence Reddy following the meeting with Simon Gardner earlier that same day: “Simon Gardner said that if we had agreed a pay rate and a margin figure we should rebate each month the difference in what we paid HMRC in NI. He stepped away from holiday pay (i think he believes we automatically pay it all out, he didn’t ask me if this was the case so I didn’t tell him it wasn’t”) The message concluded a little later: “He [Mr Gardner] was taking it back to the board but made it pretty clear he feels a monthly NI reconciliation plus credit is something we should be doing.” (ix) An e-mail, dated24th October 2011 , from Richard Brookes, of FPS, to Mr Shirley stating – “the charge rates fot (sic) the FLT drivers are below”
“Our standard pricing arrangement is cost plus as illustrated below: Pay rate + % working time directive + national insurance contributions + management fee = charge rate.”
“(i) The Client agrees to pay the hourly charges plus VAT of FPS advised at the time of booking the Employee for all hours worked inclusive of rest periods. Travelling, hotel and other expenses as may be agreed shall be itemised in FPS's invoice in addition to this charge.” (Emphasis added)
“To make out a claim for contribution or reimbursement, the claimant must show that he discharged the defendant's liability to a third party and that (1) the claimant and the defendant were both liable to the third party, (2) who was forbidden to accumulate full recoveries from both of them, but (3) who could choose to recover in full from either of them, and that (4) some or all of the burden of paying the third party should ultimately be borne by the defendant.”