Secondment: NHSScotland PIN policy

Annex A: Model 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 [Choose suitable abbreviation and substitute for the [ * ] 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:-

1 Interpretation

1.1 In this Agreement the following words and expressions shall have the meanings set opposite them below:-

"Agreement"

Means this Agreement together with the Schedule;

"Commencement Date"

Means [state];

"Confidential Information"

Means:

a) All information relating to the identity, condition or medical history of any person or other personal information where disclosure is prohibited in terms of the DPA;

b) All information the disclosure of which would or would be likely to prejudice substantially the commercial 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 set out in Part 1 of the Schedule;

"Employment Contract"

The terms of employment between the Board and the Secondee at the date of this Agreement, [details OR a copy] of which are attached as Part 3 of the Schedule, subject to any changes in the Secondee's salary or other benefits in accordance with the Board's usual procedures from time to time;

"Intellectual Property Rights"

Means any and all patents, registered and unregistered trade marks, trade and business names, domain names, registered designs, unregistered design rights and other rights in designs utility models, applications for and the right to make applications for any of such rights, know-how, Confidential Information, including rights in any get-up or trade dress, copyrights (including rights in computer software and in websites) and rights in databases, subsisting anywhere in the world, and "Intellectual Property Rights" shall be construed accordingly;

"Management Issues"

Means all those matters under the Employment Contract requiring action, investigation and/or decisions by the Board including in particular (by way of illustration only and without limitation) appraisals and performance issues; pay reviews and the award of other payments and benefits under the Employment Contract; period of annual, sick or other leave; absence of the Secondee for any other reason; any complaint about the Secondee (whether or not that would be dealt with under the Board's disciplinary procedure) and any complaint or grievance raised by the Secondee (whether or not that would be dealt with under the Board's grievance procedure);

"Personal Data"

Means personal data as defined by the DPA in terms of which the Board is Data Controller;

"Process"

Has the meaning given to it in the DPA and "Processing" shall be construed accordingly;

"Schedule"

Means the Schedule of 3 Parts attached to and forming part of this Agreement;

"Secondee"

Means [Insert name and address of Secondee];

"Secondment"

The Secondment of the Secondee by the Board to [ * ] on the terms of this Agreement;

"Secondment Period"

Has the meaning set out in Clause 3; and

"Sensitive Personal Data"

Means sensitive personal data as defined by the DPA in terms of which the Board is Data Controller.

2 Purpose

2.1 For the duration of this Agreement, the Board agrees to second the Secondee to [ * ] for the purpose of carrying out the Duties.

3 Commencement, Duration & Review

3.1 This Agreement shall commence on the Commencement Date (notwithstanding the date or dates hereof) and shall continue until [insert date] unless otherwise terminated in accordance with the provisions of Clause 9 of this Agreement (the "Secondment Period").

4 Secondment

4.1 [Without prejudice to Clause 4.5] the Board shall second the Secondee to [ * ] for the Secondment Period to perform the Duties in accordance with the terms of this Agreement.

4.2 The normal working hours of the Secondee shall be the hours specified in Part 2 of the Schedule, or such hours as may be otherwise agreed in writing by the Parties.

4.3 The Secondee's normal place of work will be [ * ]'s premises at [state]. [From time to time, the Secondee may be required to travel to other locations in order to perform the Duties. If this is the case, the provisions of Clause 5.3.3 will apply.]

4.4 No other consultancy agreement, payment arrangement, or other arrangement or contract whatsoever shall be entered into between [ * ] and the Secondee in relation to the time spent by the Secondee on [ * ]'s business or any other commitments by the Secondee without the prior written consent of the Board.

4.5 [[ * ] recognises that the Secondee is required to adhere to certain professional training requirements and to maintain his or her [professional registration] and for such purposes, is required to [state]. [ * ] undertakes to allow the Secondee to [state] for up to [insert number of days/hours] during the Secondment Period at times and on dates convenient to the Secondee and the Board (acting reasonably and having regard to any representations of [ * ]) to enable the Secondee to satisfy such professional training requirements and to maintain his or her professional registration.]

5 Charges, Costs & Expenses

5.1 The Board shall continue to pay the Secondee's salary and any allowances, provide any benefits due to the Secondee or his or her dependants, make any payments to third parties in relation to the Secondee and make any deductions that it is required to make 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 the 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:-

5.3.1 Salary costs and all employer's tax and national insurance contributions, employer's superannuation contribution and all other expenses and costs, fees and the like incurred by the Board as employer of the Secondee;

5.3.2 Any costs or expenses incurred by the Board arising out of the Secondee's status as employee of the Board, including without limitation any payment made in respect of sick leave or other special leave entitlement, or other employee benefits to which any Secondee may be entitled from time to time; and,

5.3.3 [All reasonable and properly incurred travel [and] [,] [accommodation] [and subsistence] expenses incurred by the Secondee in the course of fulfilling the Duties [(including travelling to and from [ * ]'s premises)]].

OR

[[ * ] agrees to pay, within thirty (30) days of receipt from the Board of an invoice in respect thereof, the sum of £[amount] a [month] (inclusive of VAT) during the Secondment Period for the performance of the Duties.]

5.4 [[ * ] shall refund the Secondee all reasonable travel, accommodation and other expenses wholly, exclusively and 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.]

5.5 Any fees earned by the Secondee during the Secondment Period shall be paid to [ * ].

6 Intellectual Property & Confidential Information

6.1 Any know-how and information communicated by the Secondee to [ * ] shall be used solely in connection with the business of [ * ]. All such know-how and information shall be subject to the provisions of Clause 6.2. All Intellectual Property Rights 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 shall be owned solely and exclusively by the Board free from any encumbrances 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 such Intellectual Property Rights in the Board.

6.2 The Board and [ * ] agree and undertake to each other that they shall keep secret and confidential at all times both during and after the continuance of this Agreement all and any Confidential Information of the other which comes into their possession at any time either before, during or after the Secondment Period. Neither the Board nor [ * ] shall use, copy or divulge any such Confidential Information of the other to any third party except with the express prior written consent of the disclosing party.

6.3 The provisions of Clause 6.2 shall not apply to any information which:

a) Is in or enters the public domain except as a result of the breach of this Agreement; or,

b) The recipient can demonstrate was within its rightful possession at the time of or prior to becoming aware of the relevant Confidential Information or having same disclosed to it in terms of this Agreement; or,

c) Is or becomes available in good faith to the recipient by another source not under a duty of confidentiality; or,

d) The recipient can demonstrate is developed independently of disclosure by the disclosing party hereunder; or,

e) Is disclosed pursuant to Clause 6.5.

6.4 [The Board shall be free to disclose the terms of this Agreement, the Duties, the Secondment and any documents connected to same to and within the Scottish Government Health Department [and to other Government departments, agencies and non-departmental public bodies].

6.5 No term of this Agreement, whether express or implied (including this Clause 6) shall preclude the Board from making public under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 and/or any codes applicable from time to time relating to access to public authorities' information (together referred to as "FOI"), details of all matters relating to this Agreement unless:

i) Such details constitute a trade secret;

ii) The disclosure of such details would or would be likely to prejudice substantially the commercial interests of any person; or,

iii) Such details fall within any other exemption under FOI provided always that application of such exemption shall be at the sole discretion of the Board.

The Board will take all reasonable steps to provide [ * ] with notice of such intended disclosures under FOI prior to making such information public.

6.6 [ * ] shall:-

6.6.1 Transfer any request for information, to the Board as soon as practicable after receipt and in any event within five (5) working days of receiving a request for information;

6.6.2 Comply within five (5) working days with any request by the Board; and,

6.6.3 Provide all such assistance as may be required by the Board;

to enable the Board to comply with its obligations under FOI.

6.7 [ * ] warrants that it will Process the Personal Data in compliance with the DPA and all other applicable laws, enactments, regulations, orders, standards and other similar instruments and shall not act in such a way as to put the Board in breach of any of same.

6.8 [ * ] and the Secondee shall process the Personal Data only to the extent, and in such manner, as is necessary for the purposes of the Secondment and in accordance with the Board's instructions from time to time and shall not Process the Personal Data for any other purpose, and shall keep a record of any Processing of Personal Data it carries out.

6.9 To the extent that [ * ] acts as a Data Processor of the Personal Data, [ * ] warrants that it has and undertakes that it will at all times have in place appropriate technical and organisational measures sufficient to comply at least with the obligations imposed on the Board by the seventh data protection principle set out in the DPA.

6.10 [ * ] shall ensure that its technical and organisational measures described in Clause 6.9 reflect the level of damage that might reasonably be expected to be suffered by a Data Subject (as such term is defined in the DPA) as a result of any unauthorised access or disclosure and shall ensure that its confidentiality and security policies are consistent with NHS MEL(1992)42, NHS MEL(1994)100, HDL(2003)37 and the NHS Code of Practice on Confidentiality and Disclosure of Information issued by the Scottish Government (2005) or any update thereof and afford an equivalent level of protection in respect of Sensitive Personal Data.

6.11 [ * ] shall not transfer the Personal Data outside the European Economic Area without the prior written consent of the Board.

7 Conditions of Secondment

7.1 [ * ] shall comply with all legislation, including regulations and directions deriving validity from legislation, and the Board's policies and procedures where applicable, including, without limitation, all legislation, applicable regulations and policies and procedures relating to health and safety at work and shall advise each Secondee of relevant policies and ensure that each Secondee shall comply with those policies. [ * ] shall demonstrate to the Board if required that a safe system of work is in place for each Secondee.

7.2 The Employment Contract shall remain in force during the Secondment Period. The Board shall continue to deal with any Management Issues concerning the Secondee during the Secondment Period, where relevant following consultation with [ * ].

7.3 [ * ] undertakes that it will:

7.3.1 Keep the Board regularly updated on the performance of the Secondee, completion of the Duties and operation of the Secondment generally by providing [monthly] written reports to the Board of such details and in such format reasonably requested by the Board;

7.3.2 Raise any and all concerns (whether actual or potential, formal or informal) which it may have in connection with the Secondee and/or their performance of the Duties promptly with the Board in writing and provide full and accurate particulars of them to the Board on an ongoing basis;

7.3.3 Notify the Board immediately upon becoming aware of any Management Issues and provide full and accurate particulars of them to the Board on an ongoing basis; and

7.3.4 Provide any information, documentation, access to its premises and employees and assistance (including but not limited to giving witness evidence) to the Board to deal with any Management Issues concerning the Secondee whether under the Board's internal procedures or before any court or tribunal. [The Board will reimburse the reasonable costs and expenses incurred by [ * ] in doing so subject to the prior approval of the Board].

7.4 The Secondee shall continue to be eligible for sick pay, holiday pay and any absence entitlements in accordance with the Employment Contract, and shall remain subject to the Board's approval and notification procedures. [The Board shall consult with [ * ] before approving any holiday request made by the Secondee OR notify [ * ] of any dates on which the Secondee shall take holiday].

7.5 [ * ] shall not, and shall not require the Secondee to do anything that shall, breach the Employment Contract and shall have no authority to vary the terms of the Employment Contract 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 and assistance as it may reasonably require to carry out its obligations as the Secondee's employer.

7.7 [ * ] is responsible for the supervision of each Secondee and his or her work output and behaviour and for providing a safe system of work for the Secondee. The Board shall have no 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, damages and expenses incurred by the Board:

a) Arising out of the provision of the Secondee to [ * ] hereunder and/or the behaviour or activities of the Secondee while acting for or under the supervision of [ * ] or at [ * ]'s premises (including without limitation claims made against the Board by third parties, [ * ], or the Secondee); and,

b) As a result of breach by [ * ] of its obligations of confidence stated hereunder.

7.9 [ * ] will indemnify the Board and keep it indemnified from and against any costs, claims, liabilities and expenses (including, without limitation, all costs incurred by the Board in settling, contesting or dealing with the same) which the Board may incur or suffer as a result of or in connection with any act, omission, breach or default of [ * ] (including, without limitation, any breach by [ * ] of the provisions of this Agreement) or of the Secondee.

8 Further Obligations of [ * ]

8.1 [ * ] undertakes that it will at all times during the continuance of this Agreement cooperate with the Secondee and the Board to such extent as is reasonably required to facilitate the proper operation of the Secondment. In particular (and without limitation), [ * ] will:

8.1.1 Provide the Secondee with such access to its premises during its normal hours of business, information records, employee facilities and other material relevant to its operations as the Secondee may reasonably require to perform the Duties; and,

8.1.2 Maintain in place at its own cost and expense for the duration of this Agreement all appropriate statutory insurances, including public liability and employer's liability insurances with an insurer of repute in the United Kingdom to cover the liability of the Secondee in respect of any act, omission, breach or default. Upon request, [ * ] will provide the Board with written evidence to the Board's satisfaction of such insurance.

9 Termination

9.1 This Agreement may be terminated by written notice:-

9.1.1 With immediate effect by either the Board or [ * ] in the event of the material breach by the other of any of its obligations under this Agreement which is irremediable or, if it can be remedied, which remains unremedied on expiry of a period of twenty eight (28) days after receipt by the party in breach of written notice from the other specifying the breach and the action required to remedy same; or

9.1.2 With immediate effect by the Board in the event of the liquidation (except for the purposes of amalgamation or reconstruction) or receivership of [ * ] or the appointment of an administrator of [ * ] or its ceasing trading; or

9.1.3 With immediate effect by the Board upon termination of the Employment Contract;

9.1.4 [By the Board subject to the service of [state] months prior written notice on [ * ].]

9.2 Termination or expiry of this Agreement shall not affect any rights or obligations of the parties in respect of the period up to the date of termination or expiry nor shall it affect any rights or obligations of the parties which due to the nature thereof are due to be performed or observed following such determination or expiry. Clauses [state] shall remain in full force and effect notwithstanding termination of this Agreement (whether by natural expiry or otherwise).

10 General

10.1 No provision of this Agreement may be varied, waived, extended or modified except expressly in writing and signed by authorised representatives of each of the parties.

10.2 Any omission by either party to exercise any right or remedy available to that party under this Agreement shall not be taken to signify acceptance of the event giving rise to the right to exercise such right or remedy and shall be without prejudice to the future exercise of any such right or remedy and/or to the rights or remedies of either party which may arise in the future.

10.3 Any provision of this Agreement which is or becomes illegal, void or invalid, shall not affect the legality and validity of its other provisions.

10.4 Neither party shall be entitled to assign or sub-contract the benefit or burden of this Agreement without the prior written consent of the other party.

10.5 Any notice given under this Agreement shall either be delivered personally, sent by facsimile or sent by first class recorded delivery post. The address for service of each party shall be as follows or such other address as either party may previously have notified to the other party in writing:

[_____________]

[_____________]

10.6 A notice shall be deemed to have been served:

10.6.1 If personally delivered, at the time of delivery; or

10.6.2 If sent by facsimile/email, at the time of transmission; or

10.6.3 If posted, at the expiration of 48 hours (or in the case of airmail if overseas, seven (7) days) after the envelope containing the same was delivered into the custody of the postal authorities.

10.7 In proving such service it shall be sufficient to prove that the personal delivery was made, or that the envelope containing such notice was properly addressed and delivered into the custody of the postal authorities as prepaid first class, recorded delivery or airmail letter (as appropriate) or that the facsimile was transmitted on a tested line or that the correct transmission report was received from the facsimile machine sending the notice as the case may be.

11 Applicable Law & Jurisdiction

11.1 This Agreement shall be governed by and construed in accordance with the Law of Scotland and the parties agree to submit to the exclusive jurisdiction of the Scottish Courts. IN WITNESS WHEREOF these presents consisting of this and the preceding [state] pages together with the Schedule in three Parts are executed as follows:-

This is the Schedule referred to in the foregoing Secondment Agreement between:

[insert name of NHS organisation, which is to second the employee]

And

[insert name of external hosting organisation].

Schedule: Part 1

Duties

Schedule: Part 2

Hours of Employment

Schedule: Part 3

Employment Contract

[On headed notepaper of the NHS organisation, which is to second the employee]

[Secondee Name]

[Secondee Address Line 1]

[Secondee Address Line 2]

[Postcode]

[Date]

Dear [Name]

Secondment to [position] within [Name of host]

I am writing to confirm the arrangements that have been agreed between us in connection with your Secondment (the "Secondment") to [name of host] (the "Host").

1 Continuity of Employment

1.1 You shall remain employed by [name of NHS organisation, which is to second the employee] (the "Board") during the Secondment and your current terms of employment (your "Employment Contract") shall remain unchanged, save as set out in this letter. In particular, your period of continuous employment will remain unbroken. At the end of the Secondment, the Board currently intends that you will return to [your current position/a suitable alternative position (*delete as appropriate] on the terms applying prior to the Secondment. [However, circumstances may arise where your current position is subject to organisational change. In these circumstances, the Board's policies on Organisational Change and Redeployment will apply (*delete if agreement is not to return to current position)].

2 Period of Secondment

2.1 The Secondment shall commence on [date] and shall continue until [insert date] unless earlier terminated in the circumstances summarised in Clause 2.2 below (the "Secondment Period").

2.2 The Secondment may be terminated:

a) With immediate effect by either the Board or the Host in the event of a material breach by the other of any of its obligations under the Agreement entered into between the Board and the Host in connection with the Secondment (the "Secondment Agreement") which cannot be remedied or that remain unremedied; or

b) With immediate effect by the Board in the event of certain adverse financial positions being experienced by the Host or the Host ceasing to trade; or

c) With immediate effect by the Board upon termination of your Employment Contract; or

d) [By the Board subject to the service of [state] months prior written notice on the Host].

3 Your Obligations

3.1 During the Secondment you shall:

a) Continue to abide by the terms of your Employment Contract;

b) Act as [position] and carry out [details of duties] (the "Duties");

c) Continue to report to, and be managed by [name] at the Board;

d) Report on day-to-day matters to [name] at the Host;

e) Work at the Host's premises at [address];

f) Comply with the Host's [detail relevant procedures] copies of which are available at [source];

g) Obtain the prior approval of [Accountable Manager] in the usual way before taking any holiday and, (at the same time as seeking OR on receiving) the Board's approval, notify [Host Manager] of the proposed dates of your holiday; and

h) If you are absent from work at any time, notify both [Host Manager] and [Accountable Manager] as soon as possible on the first day of absence.

4 Variations to Your Employment Contract

4.1 [Details of any terms of employment that will change, such as hours of work]

5 Keeping in Touch

5.1 During the Secondment

a) You should continue to stay in contact with [Accountable Manager] on a regular basis and, in particular, keep them informed of any issues that arise and any absences from work;

b) You should continue to attend [detail relevant meetings] in order to keep in touch with developments at the Board; and,

c) You should talk to [Accountable Manager] if you have any issues or concerns about the Secondment or the work that you are doing.

6 Monitoring, Review and Appraisals

6.1 The Host will provide the Board with regular reports on your performance, completion of the Duties and operation of the Secondment generally. With these reports and the information you provide in terms of Clause 5 above, the Board will monitor the Secondment. A meeting to review the Secondment will be scheduled between you and [Accountable Manager] approximately [half way through the Secondment Period].

6.2 At the end of the Secondment you will meet with [Accountable Manager] in order that the Board may review and evaluate the Secondment for the purposes of [insert details].

6.3 The Board will undertake any appraisals and pay reviews in the usual way and will deal with any grievances or any concerns about your conduct or performance. In all cases it will consult the Host prior to taking any action.

7 Salary, Overtime and Expenses

7.1 The Board will continue to pay your salary in the normal way and you shall continue to participate in [details of any benefits].

7.2 [Any overtime claims arising during the Secondment must be approved in writing by [Host Manager] before being passed to the Board for payment in the usual way].

7.3 Any expenses claims arising during the Secondment must be submitted to [Host Manager] in accordance with the Host's normal procedures, details of which are [state where they can be found].

8 Training Requirements [and Maintaining Professional Registration]

8.1 You have indicated that your training requirements during the Secondment Period are likely to be:

[Insert details]

The Board will use reasonable endeavours to ensure that such training requirements are met.

8.2 [You have indicated that in order to maintain your professional registration, you require to complete:

[Insert details]

The Board will make arrangements for you to complete same in order that you maintain your professional registration.]

8.3 Prior to the end of the Secondment Period you will meet with [Accountable Manager] in order to discuss any training or retraining requirements you have for returning to your current role or such other suitable role.

9 Your Personal Information

9.1 You consent to the Board providing relevant information about you to the Host in connection with the Secondment [and, in particular, to it providing [detail any sensitive personal data] to the Host to enable it to [details].]

10 Confidentiality

10.1 Your Employment Contract currently requires you to keep the Board's confidential information and trade and business secrets confidential. This is particularly important while you are on Secondment to the Host. You should also respect the confidentiality of any similar information relating to the Host to which you have access during the Secondment.

11 [Employment or Engagement with the Host post Secondment]

11.1 [You may not take up any offer of employment or engagement with the Host (or be involved in the Host's business in any capacity) for the period of [state] months after the end of the Secondment, unless you have the prior written agreement of the Board (which will not be unreasonably withheld or refused).]

Please sign this letter in duplicate and return one copy of this letter to [name] by [date] to indicate your agreement to the terms of this letter. Please retain one copy for your own records.

Yours sincerely

For and on behalf of [name of NHS organisation which is to second the employee]

I hereby agree to the above changes to the terms of my employment