Secondment Agreement: Secondment to another organisation
Agreement between:
[Add name and designation of NHS organisation, which is to second the
employee] (referred to in this Agreement as “the Board”)
And
[Add name and designation of external hosting organisation] (referred
to in this Agreement as [substitute forthe [ * ] throughout])
WHEREAS
A. The Board and [ * ] [add short description of context].
B. As part of this arrangement, the Board and [ * ] have agreed
that the Board will second the Secondee (as defined below) in
accordance with and subject to the terms of this Agreement.
THEREFORE the parties do now hereby agree as follows:-
Interpretation
1.1 In this Agreement the following words and expressions shall
have the meanings set opposite them below:-
“Agreement” Means this Agreement together withthe Schedule;
“CommencementDate”Start Date
“Confidential Information” Means:a) All information relating to theidentity, condition or medical historyof any person or other personalinformation where disclosure isprohibited in terms of the DPA;
b) All information the disclosure ofwhich would or would be likelyto prejudice substantially thecommercial interests of any person;
“Data Controller” Has the meaning given to it in the DPA;
“Data Processor” Has the meaning given to it in the DPA;
“DPA” Means the Data Protection Act 1998;
“Duties” Means the duties of the Secondee as setout in Part 1 of the Schedule;
“EmploymentContract”The terms of employment between theBoard and the Secondee at the dateof this Agreement, [details OR a copy]of which are attached as Part 3 of theSchedule, subject to any changes inthe Secondee’s salary or other benefitsin accordance with the Board’s usualprocedures from time to time;
“IntellectualProperty Rights”Means any and all patents, registeredand unregistered trade marks, tradeand business names, domain names,registered designs, unregistered designrights and other rights in designs
utility models, applications for and theright to make applications for any of
such rights, know-how, ConfidentialInformation, including rights in any getup
or trade dress, copyrights (includingrights in computer software and inwebsites) and rights in databases,subsisting anywhere in the world, and
“Intellectual Property Rights” shall beconstrued accordingly;
“ManagementIssues”Means all those matters under theEmployment Contract requiring action,investigation and/or decisions bythe Board including in particular (byway of illustration only and without limitation) appraisals and performanceissues; pay reviews and the award of other payments and benefits underthe Employment Contract; period ofannual, sick or other leave; absence ofthe Secondee for any other reason; anycomplaint about the Secondee (whetheror not that would be dealt with underthe Board’s disciplinary procedure)and any complaint or grievance raisedby the Secondee (whether or not thatwould be dealt with under the Board’sgrievance procedure);
“Personal Data” Means personal data as defined by the DPA in terms of which the Board isData Controller;
“Process” Has the meaning given to it in the DPAand “Processing” shall be construedaccordingly;
“Schedule” Means the Schedule of 3 Parts attachedto and forming part of this Agreement;
“Secondee” Means [Insert name and address ofSecondee];
“Secondment” The Secondment of the Secondee bythe Board to[ * ] on the terms of thisAgreement;
“Secondment Period” Has the meaning set out in Clause 3;
“Sensitive PersonalData”Means sensitive personal data asdefined by the DPA in terms of whichthe Board is Data Controller.
Purpose
2.1For the duration of this Agreement, the Board agrees to secondthe Secondee to [ * ]for the purpose of carrying out the Duties.
Commencement, Duration & Review
3.1This Agreement shall commence on the Commencement Date(notwithstanding the date or dates hereof) and shall continueuntil [insert date]unless otherwise terminated in accordancewith the provisions of Clause 9 of this Agreement (the“Secondment Period”).
Secondment
4.1Without prejudice to Clause 4.5the Board shall second theSecondee to[ * ] for the Secondment Period to perform theDuties in accordance with the terms of this Agreement.
4.2The normal working hours of the Secondee shall be the hoursspecified in Part 2 of the Schedule, or such hours as may beotherwise agreed in writing by the Parties.
4.3The Secondee’s normal place of work will be [ * ]’s premisesat [state]. [From time to time, the Secondee may be required totravel to other locations in order to perform the Duties. If this isthe case, the provisions of Clause 5.3.3 will apply.]
4.4No other consultancy agreement, payment arrangement, orother arrangement or contract whatsoever shall be entered intobetween [ * ]and the Secondee in relation to the time spent bythe Secondee on [ * ]’s business or any other commitments bythe Secondee without the prior written consent of the Board.
4.5[ * ]recognises that the Secondee is required to adhere tocertain professional training requirements and to maintain his orher[professional registration]and for such purposes, is requiredto[state]. [ * ]undertakes to allow the Secondee to[state]for upto [insert number of days/hours]duringthe Secondment Periodat times and on dates convenient to the Secondee and the Board(acting reasonably and having regard to any representationsof[ * ])to enable the Secondee to satisfy such professionaltraining requirements and to maintain his or her professionalregistration.]
Charges, Costs & Expenses
5.1The Board shall continue to pay the Secondee’s salary and anyallowances, provide any benefits due to the Secondee or his orher dependants, make any payments to third parties in relation to the Secondee and make any deductions that it is required to ake from the Secondee’s salary and other payments.
5.2[ * ] shall, at the end of each [specify period] during the Secondment Period provide the Board with details of any overtime done by the Secondee during the preceding [period] and Board shall make the necessary overtime payments to the Secondee in the usual way.
5.3[ * ] agrees to pay, within thirty (30) days of receipt from the Board of an invoice in respect thereof, the following charges, costs, and expenses in respect of the Secondee:-
5.4Salary costs and all employer’s tax and nationalinsurance contributions, employers superannuation contribution and all other expenses, costs, fees
and the like incurred by the Board as employer of the Secondee;
5.5Any costs or expenses incurred by the Board arising out of theSecondee’s status as employee of the Board, including without limitation any payment made in respect of sick leave or other special leave entitlement, other employee benefits which any Secondee may be entitled to from time to time, and;
5.6[All reasonable and properly incurred travel [and] [accommodation] [and subsistence] expenses incurredby the Secondee in the course of fulfilling the duties (including travelling to and from [ * ]’s premises)
OR
5.7[ * ] agrees to pay, within thirty (30) days of receipt from the Board an invoice in respect thereof, the sum of £[amount] a month (inclusive of VAT) during the Secondment Period for the performance of the duties.
5.8[ * ] shall refund the Secondee all reasonable travel,accommodation and other expenses wholly, exclusively & necessarily incurred by the Secondee during the Secondment Period in or in connection with the exercise of the Services, if
such expenses are evidenced in such manner as [ * ] may specify from time to time.
5.9Any fees earned by the Secondee during the Secondment Period shall be paid to[* ].
Intellectual Property & ConfidentialInformation
6.1Any know-how and information communicated by theSecondee to [ * ]shall be used solely in connection with thebusiness of [ * ]. All such know-how and information shall besubject to the provisions of Clause 6.2. All Intellectual PropertyRights throughout the world created during the continuance
of this Agreement by the Secondee and/or by or on behalf of[ * ]through the input and involvement of the Secondee shallbe owned solely and exclusively by the Board free from anyencumbrances and, upon request by the Board at any time, [ * ]shall execute any and all documents and do all other things
necessary in order to vest such ownership of any and all suchIntellectual Property Rights in the Board.
6.2The Board and [ * ] agree and undertake to each other thatthey shall keep secret and confidential at all times bothduring and after the continuance of this Agreement all andany Confidential Information of the other which comes intotheir possession at any time either before, during or after theSecondment Period. Neither the Board nor [ * ]shall use, copyor divulge any such Confidential Information of the other toany third party except with the express prior written consentof the disclosing party.
6.3The provisions of Clause 6.2 shall not apply to any informationwhich:
a) Is in or enters the public domain except as a result of thebreach of this Agreement; or,
b) The recipient can demonstrate was within its rightfulpossession at the time of or prior to becoming aware of therelevant Confidential Information or having same disclosedto it in terms of this Agreement; or,
c) Is or becomes available in good faith to the recipient byanother source not under a duty of confidentiality; or,
d) The recipient can demonstrate is developed independentlyof disclosure by the disclosing party hereunder; or,
e) Is disclosed pursuant to Clause 6.5.
6.4The Board shall be free to disclose the terms of this Agreement,the Duties, the Secondment and any documents connected tosame to and within the Scottish Government Health Departmentand to other Government departments, agencies and non-departmental public bodies.
6.5No term of this Agreement, whether express or implied(including this Clause 6) shall preclude the Board from makingpublic under the Freedom of Information (Scotland) Act 2002and the Environmental Information (Scotland) Regulations2004 and/or any codes applicable from time to time relatingto access to public authorities’ information (together referredto as “FOI”), details of all matters relating to this Agreementunless:
i) Such details constitute a trade secret;
ii) The disclosure of such details would or would be likely toprejudice substantially the commercial interests of anyperson; or,
iii) Such details fall within any other exemption under FOIprovided always that application of such exemption shallbe at the sole discretion of the Board.
The Board will take all reasonable steps to provide [ * ]withnotice of such intended disclosures under FOI prior to makingsuch information public.
6.6[ * ]shall:-
Transfer any request for information, to the Boardas soon as practicable after receipt and in any eventwithin five (5) working days of receiving a request for
information;
Comply within five (5) working days with any requestby the Board; and,
Provide all such assistance as may be required by theBoard;to enable the Board to comply with its obligations under FOI.
6.7[ * ]warrants that it will Process the Personal Data incompliance with the DPA and all other applicable laws, enactments, regulations, orders, standards and other similarinstruments and shall not act in such a way as to put the Boardin breach of any of same.
6.8[ * ]and the Secondee shall process the Personal Data onlyto the extent, and in such manner, as is necessary for thepurposes of the Secondment and in accordance with theBoard’s instructions from time to time and shall not Process thePersonal Data for any other purpose, and shall keep a record of
any Processing of Personal Data it carries out.
6.9To the extent that [ * ]acts as a Data Processor of the PersonalData, [ * ]warrants that it has and undertakes that it will at alltimes have in place appropriate technical and organisationalmeasures sufficient to comply at least with the obligationsimposed on the Board by the seventh data protection principleset out in the DPA.
6.9.2[ * ]shall ensure that its technical and organisational measuresdescribed in Clause 6.9 reflect the level of damage thatmight reasonably be expected to be suffered by a DataSubject (as such term is defined in the DPA) as a result ofany unauthorised access or disclosure and shall ensure thatits confidentiality and security policies are consistent withNHS MEL(1992)42, NHS MEL(1994)100, HDL(2003)37 andthe NHS Code of Practice on Confidentiality and Disclosure ofInformation issued by the Scottish Government (2005) or anyupdate thereof and afford an equivalent level of protection inrespect of Sensitive Personal Data.
6.9.3[ * ]shall not transfer the Personal Data outside the EuropeanEconomic Area without the prior written consent of the Board.
Conditions of Secondment
7.1[ * ]shall comply with all legislation, including regulations anddirections deriving validity from legislation, and the Board’spolicies and procedures where applicable, including, withoutlimitation, all legislation, applicable regulations and policiesand procedures relating to health and safety at work andshall advise each Secondee of relevant policies and ensurethat each Secondee shall comply with those policies. [ * ]shalldemonstrate to the Board if required that a safe system ofwork is in place for each Secondee.
7.2The Employment Contract shall remain in force during theSecondment Period. The Board shall continue to deal withany Management Issues concerning the Secondee during theSecondment Period, where relevant following consultation with[ * ].
7.3[ * ]undertakes that it will:
Keep the Board regularly updated on the performanceof the Secondee, completion of the Duties andoperation of the Secondment generally by providing[monthly]written reports to the Board of such detailsand in such format reasonably requested by the Board;
Raise any and all concerns (whether actual or potential,formal or informal) which it may have in connectionwith the Secondee and/or their performance of theDuties promptly with the Board in writing and providefull and accurate particulars of them to the Board on anongoing basis;
Notify the Board immediately upon becoming aware ofany Management Issues and provide full and accurateparticulars of them to the Board on an ongoing basis;
And
Provide any information, documentation, access toits premises and employees and assistance (includingbut not limited to giving witness evidence) to theBoard to deal with any Management Issues concerning
the Secondee whether under the Board’s internalprocedures or before any court or tribunal. [The Boardwill reimburse the reasonable costs and expense
incurred by [ * ] in doing so subject to the prior approvalof the Board].
7.4The Secondee shall continue to be eligible for sick pay, holidaypay and any absence entitlements in accordance with theEmployment Contract, and shall remain subject to the Board’sapproval and notification procedures. The Board shall consultwith [ * ] before approving any holiday request made by theSecondee OR notify [ * ] of any dates on which the Secondee shall take holiday.
7.5[ * ] shall not, and shall not require the Secondee to doanything that shall, breach the Employment Contract andshall have no authority to vary the terms of the EmploymentContract or make any representations to the Secondee in
relation to the terms of the Employment Contract.
7.6[ * ] shall provide the Board with such information andassistance as it may reasonably require to carry out itsobligations as the Secondee’s employer.
7.7[ * ] is responsible for the supervision of each Secondee andhis or her work output and behaviour and for providing asafe system of work for the Secondee. The Board shall haveno responsibility or liability whatsoever for the performance,conduct or other acts, omissions, breaches or defaults of the
Secondee during the term of this Agreement.
7.8[ * ] shall indemnify the Board in respect of all costs, damagesand expenses incurred by the Board:
a) Arising out of the provision of the Secondee to [ * ]hereunder and/or the behaviour or activities of theSecondee while acting for or under the supervision of [ * ]or at [ * ]’s premises (including without limitation claims
made against the Board by third parties, [ * ], or theSecondee); and,
b) As a result of breach by [ * ] of its obligations of confidencestated hereunder.
7.9[ * ] will indemnify the Board and keep it indemnifiedfrom and against any costs, claims, liabilities and expenses(including, without limitation, all costs incurred by the Boardin settling, contesting or dealing with the same) which theBoard may incur or suffer as a result of or in connectionwith any act, omission, breach or default of [ * ] (including,without limitation, any breach by [ * ] of the provisions of thisAgreement) or of the Secondee.
Further Obligations of [ * ]
8.1[ * ] undertakes that it will at all times during the continuanceof this Agreement cooperate with the Secondee and the Boardto such extent as is reasonably required to facilitate theproper operation of the Secondment. In particular (and withoutlimitation), [ * ] will:
8.2Provide the Secondee with such access to its premisesduring its normal hours of business, informationrecords, employee facilities and other material relevantto its operations as the Secondee may reasonablyrequire to perform the Duties; and,
8.3Maintain in place at its own cost and expense for theduration of this Agreement all appropriate statutoryinsurances, including public liability and employer’sliability insurances with an insurer of repute in theUnited Kingdom to cover the liability of the Secondeein respect of any act, omission, breach or default.Upon request, [ * ] will provide the Board with writtenevidence to the Board’s satisfaction of such insurance.
Termination
9.1This Agreement may be terminated by written notice:-
9.2With immediate effect by either the Board or [ * ] in theevent of the material breach by the other of any of itsobligations under this Agreement which is irremediableor, if it can be remedied, which remains unremediedon expiry of a period of twenty eight (28) days afterreceipt by the party in breach of written notice fromthe other specifying the breach and the action required
to remedy same; or
9.3With immediate effect by the Board in the event of theliquidation (except for the purposes of amalgamationor reconstruction) or receivership of [ * ] or theappointment of an administrator of [ * ] or its ceasingtrading; or
9.4With immediate effect by the Board upon terminationof the Employment Contract;
9.5[By the Board subject to the service of [state] months prior written notice on [*]
9.6Termination or expiry of this Agreement shall not affect anyrights or obligations of the parties in respect of the periodup to the date of termination or expiry nor shall it affect anyrights or obligations of the parties which due to the naturethereof are due to be performed or observed following suchdetermination or expiry. Clauses [state] shall remain in fullforce and effect notwithstanding termination of this Agreement(whether by natural expiry or otherwise).
General
10.1No provision of this Agreement may be varied, waived,extended or modified except expressly in writing and signedby authorised representatives of each of the parties.