Download EMPLOYMENT PRACTICES LIABILITY INSURANCE The Schedule

EMPLOYMENT PRACTICES LIABILITY INSURANCE
The Schedule
Policy Number:
The Assured:
Address:
Underwriters:
Markel Syndicate 3000 at Lloyd’s, 49 Leadenhall Street, London EC3A 2EA, United
Kingdom
Period of Insurance:
From:
Limit of Indemnity:
£
Retentions:
(i) Claims made
worldwide other than
claims falling within the
jurisdiction of the United
States of America and
Canada:
To:
Both dates inclusive
(ii) Claims made within the
jurisdiction of the United
States of America or
Canada:
Jurisdiction:
Premium:
Extended Discovery
Period:
Period:
Additional Premium:
(applicable to 2. Definitions
(j)
New Subsidiaries:
Total Assets Limit:
(applicable to 2. Definitions
(l)(ii))
Territories:
(plus Insurance Premium
Tax at the rate from time
to time in force)
World-wide Excluding the
United States of America
and Canada
Prior and Pending Date:
(applicable to 3. Exclusions
(g))
Retroactive Date:
Date of Proposal:
Endorsement Numbers:
Dated in London:
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1. INSURANCE CLAUSE
Underwriters agree, subject to the terms, conditions, limitations and exclusions of this Policy,
to pay on behalf of the Insured, Loss arising from any Claim first made against the Insured
during the Period of Insurance.
2. DEFINITIONS
(The following words shall have the same meaning throughout this Policy, whether
expressed in the singular or the plural. Words in the masculine gender shall include the
feminine.)
(a) ‘Claim’ shall mean:
(i)
any application, claim form, writ or summons of any description whatsoever or
any cross-claim or counter claim issued against or served on the Insured;
(ii)
any written communication received by the Insured;
(iii)
the criminal prosecution of the Insured;
(iv)
the ordering or commissioning of any Investigation; or
(v)
any regulatory or administrative proceeding commenced against the Insured
alleging any Wrongful Employment Act.
(b) ‘Company’ shall mean the Company stated in the Schedule and shall include all
Subsidiary Companies.
(c) ‘Costs and Expenses' shall mean all reasonable and necessary legal fees and
expenses incurred by or on behalf of the Insured with Underwriters’ prior written
consent (such consent not to be unreasonably withheld) resulting solely from the
investigation and/or defence and/or monitoring and/or settlement of any Claim which
falls to be indemnified under this Policy, and appeals therefrom. Costs and Expenses
shall also include any premium paid for insurance bonds which are required to be paid
solely in order to institute an appeal.
‘Costs and Expenses’ shall not include salaries, commissions, bonuses, expenses or
other benefits of the Directors or Officers or of any Employee of the Company.
(d) ‘Director’ shall mean any natural person who is, was or may during the Period of
Insurance become a Director of the Company (including a Shadow Director as defined
in section 741 Companies Act 1985) or any natural person who is construed to be a
Director within the meaning of any applicable law or regulation governing such matters.
(e) ‘Employee’ shall mean any natural person who was or is or may hereafter be employed
under a contract of service with the Company. ‘Employee’ shall not mean any
independent agent, consultant, sub-contractor, professional advisor or any worker who
is not employed under a contract of service.
(f) ‘Insured’ shall mean:
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(i)
the Company;
(ii)
any Director or any Officer of the Company;
(iii)
any Employee of the Company;
(iv)
the lawful spouse of any person as described in (ii) or (iii) above, but only in
respect of a claim against such a spouse to enforce a judgment against such
person for a Wrongful Employment Act by that person in his capacity as
Director, Officer or Employee of the Company; and
(v)
in the event of the death or incompetency or bankruptcy of any person as
described in (ii), (iii) or (iv) above, their estate, heirs, legal representatives or
assigns, for legal liabilities incurred due to any Wrongful Employment Act of
any Director, Officer or Employee in his capacity as a Director, Officer or
Employee of the Company.
(g) ‘Investigation’ shall mean any official investigation or inquiry by any body authorised by
statute to investigate any Wrongful Employment Act.
(h) ‘Loss’ shall mean loss by reason of the legal liability of the Insured to pay:
(i)
compensation, damages or costs awarded against the Insured, including
punitive or exemplary damages where insurance against liability to pay such
punitive or exemplary damages is lawful under the laws of the territory in
which the Claim is made;
(ii)
settlements entered into by the Insured with Underwriters’ prior written
consent (such consent not to be unreasonably withheld); and
(iii)
Costs and Expenses.
‘Loss’ does not include:
(i)
civil, regulatory or criminal fines or penalties;
(ii)
remuneration or other benefits due to any Employee including the obligation
to pay the National Minimum Wage (or its equivalent in any foreign
jurisdiction), holiday pay, pay for any notice period or sums unlawfully
deducted from any wages, or any compensation for the non-payment of such
remuneration or other benefits;
(iii)
any contractual or statutory redundancy payment;
(iv)
any obligation pursuant to any law or any regulation in any jurisdiction in
respect of workers’ compensation, disability benefits, redundancy or
unemployment benefits or compensation, unemployment insurance,
retirement benefits, social security benefits, minimum wage regulation or any
similar law or regulation whatsoever;
(v)
the costs of compliance with any order for reinstatement or any injunctive or
other non-pecuniary relief, or any additional compensation for non-compliance
with any such order;
(vi)
the costs of adjusting or adapting any premises or methods of working to
meet the needs of any person with a disability; or
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(vii)
any matter which is uninsurable under English law.
(i) ‘Merger’ means the combination of two or more entities such that none of them:
(i)
controls the composition of the Board of Directors, or
(ii)
controls more than half of the voting power, or
(iii)
holds more than half of the issued share capital.
(j) ‘Period of Insurance' shall mean the period stated in the Schedule. However, in the
event that Underwriters refuse to renew this Policy, the Insured shall have the right to
an Extended Discovery Period in respect only of any Wrongful Employment Act
committed or alleged to have been committed prior to the expiry date of this Policy
stated in the Schedule provided that:
(i)
the Extended Discovery Period shall be the period stated in the Schedule;
(ii)
the quotation by Underwriters of different premiums and/or different terms
and/or different conditions and/or different limitations and/or different
exclusions and/or a different Limit of Indemnity at renewal does not constitute
a refusal to renew;
(iii)
this right is not exercisable if the Insured shall have obtained any other
insurance against substantially the same risks as the risks covered under this
Policy, and the Extended Discovery Period shall forthwith terminate if the
Insured take out any other insurance against substantially the same risks as
the risks covered under this Policy;
(iv)
to exercise their right under this provision the Company named first in the
Schedule shall within ten (10) days of the expiry date of this Policy give notice
in writing to Underwriters and shall pay the additional premium specified in the
Schedule;
(v)
this right to an Extended Discovery Period is not exercisable on or after the
Takeover or Merger of the Company or on or after the appointment of any
liquidator, provisional liquidator, administrator or receiver of the Company;
(vi)
the Limit of Indemnity stated in the Schedule shall not in any way be
increased by virtue of the Extended Discovery Period.
(k) ‘Pollution’ shall mean the discharge, dispersal, release or escape of any solid, liquid,
gaseous, or thermal irritant or contaminant including, but not limited to, smoke, vapours,
soot, dust, fibres, fungi, viruses, bacteria, fumes, acids, alkalis, chemicals and waste
(including, but not limited to material to be recycled, reconditioned or reclaimed).
(l) ‘Subsidiary Company' shall mean:
(i)
any company in respect of which the Company (either directly or indirectly
through one or more of its Subsidiary Companies) before the inception date
of this Policy:
(a) controls the composition of the Board of Directors, or
(b) controls more than half of the voting power, or
(c) holds more than half of the issued share capital;
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(ii)
any other company that falls within (i) above domiciled or incorporated in the
territories stated in the Schedule, acquired or created on or after the inception
date of this Policy provided that the creation or acquisition of such company
does not increase the total assets of all companies insured under this Policy
by more than the Total Assets Limit stated in the Schedule, and provided that
this Policy shall only apply in respect of a Wrongful Employment Act
committed or alleged to have been committed after the date of acquisition or
creation;
(iii)
any other company specifically named in the Schedule or in any endorsement
to this Policy as a subsidiary.
(m) ‘Takeover’ of an entity means a transaction or event as a result of which another entity:
(i)
controls the composition of the Board of Directors, or
(ii)
controls more than half of the voting power, or
(iii)
holds more than half of the issued share capital.
(n) ‘Terrorism’ shall mean the use of force or violence and/or the threat thereof, by any
person or group(s) of persons, whether acting alone or on behalf of or in connection with
any organisation(s) or government(s), committed for political, religious, ideological or
similar purposes including the intention to influence any government and/or to put the
public, or any section of the public, in fear.
(o) ‘Unlawful Association’ shall mean any organisation which is engaged in Terrorism and
includes, but is not limited to, any organisation which at any relevant time is a proscribed
organisation within the meaning of the Terrorism Act 2000 (UK) or any amendment or
re-enactment thereof.
(p) ‘War’ shall mean war, invasion, acts of foreign enemies, hostilities or warlike operations
(whether war be declared or not), civil war, rebellion, revolution, insurrection, civil
commotion assuming the proportions of or amounting to an uprising, military or usurped
power.
(q) ‘Wrongful Employment Act’ shall mean:
(i)
wrongful or unfair termination, whether actual or constructive, of the
employment of, or demotion of, or failure or refusal to hire or promote, any
natural person in violation of the law, whether common or statutory, or in
breach of any agreement to commence or continue employment; or
(ii)
employment discrimination, including any failure or refusal to hire any natural
person, or discharge of, or other discrimination against, any natural person
with respect to his remuneration or any of the terms, conditions or privileges
of his employment, or any limitation, segregation or classification of any
Employee or of applicants for employment in any way which would deprive or
tend to deprive any natural person of employment opportunities or otherwise
adversely affect his status as an Employee, because of such natural person’s
race, colour, religion or belief, age, gender or sexual orientation, national
origin, disability, pregnancy, part time or fixed term status or other protected
status; or
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(iii)
harassment of an Employee on any protected grounds, including unwelcome
sexual advances, requests for sexual favour or other verbal or physical
conduct of a sexual nature; or
(iv)
failure to allow an Employee to exercise any rights under law; or
(v)
victimisation or retaliatory treatment against an Employee on account of such
Employee exercising or attempting to exercise his rights under law; or
(vi)
breach of the express or implied terms of any contract of employment; or
(vii)
libel, slander or defamation of any Employee or negligent misrepresentation
in any reference in respect of any Employee or any breach of the Data
Protection Act 1998 in respect of the personal data of any Employee
committed or allegedly committed by the Insured.
Related or continuous or repeated or causally connected Wrongful Employment
Acts shall constitute a single Wrongful Employment Act.
3. EXCLUSIONS
(The heading of each exclusion is for ease of identification only)
Underwriters shall not pay any Loss arising from any Claim:
(a)
BODILY INJURY OR PROPERTY DAMAGE
arising out of any actual or alleged bodily injury, mental illness, sickness, disease or death of
any person, including any criminal prosecution for manslaughter or under the Health and
Safety at Work Act 1974 (or any equivalent foreign legislation), or arising out of any actual or
alleged damage to or destruction of any tangible property, including loss of use thereof,
provided that this exclusion shall not apply to a Claim alleging injury to feelings caused by a
Wrongful Employment Act.
(b)
DISHONESTY
brought about by or contributed to by or consequent upon the actual dishonesty, fraud or
malicious conduct of any Director, provided that:
(i)
this exclusion shall not apply to Costs and Expenses incurred in successfully
defending any such Claim;
(ii)
this exclusion shall not apply to any Director not personally implicated in
such dishonesty, fraud or malicious conduct and shall not apply to the
Company unless the majority of the Directors are personally implicated in
such dishonesty, fraud or malicious conduct.
(c) PENSION SCHEMES
arising out of any pension or superannuation scheme or programme.
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(d) CLAIMS BY DIRECTORS
by any Director.
(e) CLAIMS BY THE COMPANY
by the Company.
(f) NEW BUSINESSES
arising out of or assumed as a result of the transfer to the Company of any business or part
of a business provided that this exclusion shall not apply to any Wrongful Employment Act
committed by the Insured after the date of transfer to the Company.
(g) PRIOR AND PENDING CLAIMS
based upon or in any way involving allegations made or any facts in issue in any pending or
prior litigation as at the Pending and Prior Date stated in the Schedule or any Claim arising
out of the same or substantially the same facts, circumstances or situations.
For the purposes of this exclusion “litigation” shall mean any civil, administrative, regulatory
or criminal proceedings or any investigation, examination, inquiry or disciplinary
proceedings, including any correspondence prior to any such proceedings, involving any
Insured.
(h) CLAIMS NOTIFIED UNDER PREVIOUS INSURANCE
arising out of any circumstance notified under any insurance in force prior to the inception
date of this Policy or which should have been so notified.
(i) RETROACTIVE DATE
relating to any Wrongful Employment Act done (or in the case of an omission which should
have been done) prior to the Retroactive Date (if any) stated in the Schedule.
(j) OTHER INSURANCE OR INDEMNITY
to the extent that any indemnity or payment is recoverable from any other source.
(k) POLLUTION
based upon, arising out of, directly or indirectly resulting from or in consequence of, or in any
way involving any actual or alleged seepage, Pollution or contamination of any kind.
(l) RADIOACTIVITY
brought about by or contributed to by or consequent upon:
(i)
loss or destruction of or damage to any property whatsoever or any loss or
expense whatsoever resulting or arising therefrom or any consequential loss,
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(ii)
any legal liability of whatsoever nature
directly or indirectly caused by or contributed to by or arising from
(a)
ionising radiations or contamination by radioactivity from any nuclear fuel or
from any nuclear waste from the combustion of nuclear fuel,
(b)
the radioactive, toxic, explosive or other hazardous properties of any
explosive nuclear assembly or nuclear component thereof.
(m) WAR AND TERRORISM
based upon, resulting directly or indirectly from, in consequence of, contributed to by, or in
any way arising from:
(i)
War
(ii)
Terrorism
(iii)
Any unlawful, wanton or malicious act committed by a person or persons
acting on behalf of or in connection with any Unlawful Association
regardless of any other cause or event contributing concurrently or in any other sequence to
the Claim or Loss.
Also excluded is loss, damage, costs or expense of whatsoever nature directly or indirectly
caused by, resulting from or in connection with any action taken in controlling, preventing,
suppressing or in any way relating to (i) and/or (ii) and/or (iii) above.
If Underwriters allege by reason of this exclusion that any loss, damage, cost or expense is
not covered by this Policy the burden of proving the contrary shall be upon the Insured.
In the event that any part of this exclusion is found to be invalid or unenforceable, the
remainder shall still be of full force and effect.
(n) JURISDICTION
brought outside the jurisdictions stated in the Schedule or brought under the laws of any
territory outside such jurisdictions or any claim for the enforcement of any judgment obtained
in the courts of any territory outside the jurisdictions.
4. LIMIT AND RETENTION
(a)
Underwriters total aggregate liability under this Policy including any
endorsements to this Policy (inclusive of Costs and Expenses) shall not
exceed the Limit of Indemnity stated in the Schedule, irrespective of the
number of Claims made and the number of persons against whom such
Claims may be made.
(b)
Underwriters shall only be liable in excess of the Retention (if any) stated in
the Schedule (inclusive of Costs and Expenses) provided that no Retention
shall apply if a Claim is brought only against one of the Insureds described at
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parts (ii) to (v) of the definition of the Insured and such Insured is not
indemnified by or entitled to be indemnified by the Company.
5. CLAIMS PROVISIONS
(a)
The due observance and fulfilment of all the terms, conditions and
endorsements of this Policy by the Insured shall be a condition precedent to
any liability of Underwriters to make any payment under this Policy.
(b)
The Insured shall as soon as practicable (and in any event not later than the
expiry of the Period of Insurance) give to Underwriters notice in writing of
any Claim or of any circumstances of which the Insured shall become aware
which might reasonably be expected to give rise to a Claim, giving reasons
for the anticipation of such Claim, with full particulars as to dates and persons
involved.
Such notice having been given as required by this provision, any subsequent
Claim arising out of the circumstances so notified shall be deemed to have
been made during the Period of Insurance.
(c)
The Insured shall give Underwriters such information and co-operation as
Underwriters may reasonably require.
(d)
The Insured shall not admit liability for or settle or attempt to settle any Claim
or incur any Costs and Expenses in connection with any Claim without
Underwriters’ prior written consent (such consent not to be unreasonably
withheld).
(e)
Underwriters shall be entitled but not obliged at any time to take over and
conduct in the name of the Insured the defence or settlement of any Claim or
to prosecute in the name of the Insured for their own benefit any claim for
payment, indemnity or damages or otherwise against any third party.
(f)
If Underwriters consider the Insured will be entitled to indemnity under this
Policy they shall pay Costs and Expenses prior to the final resolution of any
Claim. If such payment is made the Insured shall refund such Costs and
Expenses to the extent that they may not be entitled to indemnity under this
Policy.
(g)
The Insured shall not be required to contest any Claim unless Counsel of not
less than 10 years standing (to be mutually agreed upon by the Insured and
Underwriters or, in default of agreement, to be appointed by the President for
the time being of the Law Society) shall advise that such Claim should be
contested.
(h)
Underwriters shall not settle any Claim without the consent of the Insured. If
however the Insured shall refuse to consent to any settlement recommended
by Underwriters and shall elect to contest a Claim, then Underwriters’ liability
for such Claim (including Costs and Expenses) shall not exceed the amount
for which the Claim could have been settled inclusive of Costs and
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Expenses incurred with their consent up to the date of such refusal, and then
only up to the Limit of Indemnity stated in the Schedule.
(i)
The Insured shall not disclose the existence or terms of this Policy to anyone
without Underwriters prior written consent, save to the extent that such
disclosure is required by law (and for the avoidance of doubt a requirement to
disclose the existence of this Policy is not a requirement to disclose its terms).
6. TAKEOVER AND MERGER
In the event of the Takeover or Merger of the Company the Policy shall pay only Loss by
reason of Wrongful Employment Acts committed prior to the date of the Takeover or Merger.
In the event of any Subsidiary Company ceasing during the Period of Insurance to be a
Subsidiary Company, the Policy shall pay only Loss by reason of Wrongful Employment Acts
committed when it was a Subsidiary Company.
7. CONDITIONS
(a) If the Insured shall make any request for payment in respect of any Loss knowing the same
to be false or fraudulent, as regards amount or otherwise, this Policy shall become void and
all requests for payment in respect of any Loss hereunder shall be forfeited.
(b) If the Premium has not been paid within the agreed period, Underwriters may cancel this
Policy by giving 15 days written notice to the Company first named in the Schedule or to the
Broker, who shall receive such notice as agent on behalf of all persons and entities falling
within the definition of the Insured. If the Premium is paid in full to Underwriters before the
notice period expires, notice of cancellation shall automatically be revoked. If not, the Policy
shall automatically terminate at the end of the notice period. In the event of such
cancellation, premium is due to Underwriters on a pro rata basis for the period that
Underwriters were on risk but the full Premium shall be payable in the event of notification of
a Claim or of any circumstances before the effective date of termination.
(d) The Proposal Form noted in the Schedule (together with all documents accompanying it and
any other information supplied by the Insured to Underwriters in connection with this Policy)
is the basis of this Policy and is incorporated herein.
(e) For the purpose of determining the entitlement to indemnity of the Insureds described at
parts (ii) to (v) of the definition of the Insured, no statement or omission in the Proposal
Form nor any other knowledge, act or omission by any one Insured shall be imputed to any
other Insured.
(f) The parties to this Policy are Underwriters and the Insured. A person who is not a party to
this contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce
any term of this contract but this does not affect any right or remedy of a third party which
exists or is available apart from that Act. All Insureds agree that the Company first named in
the Schedule is authorised to agree any amendment to any of the terms and conditions of
this Policy and to give and receive all notices in connection with this Policy on behalf of all
the Insureds.
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(g) This Policy is governed by the Laws of England and Wales and Underwriters and the
Insured agree to submit to the exclusive jurisdiction of the English Courts in respect of any
dispute under this Policy.
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NOTICE
COMPLAINTS
Below are two complaints notices. If you are insured with Markel Syndicate 3000 at Lloyd’s
please follow the procedure set out in (1) below . If you are insured with Markel International
Insurance Company Ltd, please follow the procedure set out in (2)
1.
Markel Syndicate 3000 at Lloyd’s
If at any time you have any questions or concerns regarding this Policy or the handling of a
Claim, you should in the first instance refer to your insurance broker or intermediary, if any. If
your problem cannot be resolved in this way, please write to the Claims Manager,
Professional Liability Division, Markel International Limited, The Markel Building, 49
Leadenhall Street, London, EC3A 2EA. We will then advise you of Markel’s internal
complaints handling procedure.
If you are still unable to resolve the situation and wish to make a complaint you can do so at
any time by referring the matter to the Complaints Department at Lloyd’s. Their address is
Complaints Department, Lloyd’s, One Lime Street, London, EC3M 7HA; Tel: 020 7327 5693;
Fax: 020 7327 5225; e-mail: [email protected]
Complaints that cannot be resolved by our internal complaints handling procedure or by the
Complaints Department at Lloyd’s may be referred to the Financial Ombudsman Service.
Further details will be provided at the appropriate stage of the complaints process.
These complaints procedures do not affect your right to have recourse to legal action or to
any other remedy available to you.
2.
Markel International Insurance Company Ltd
If at any time you have any questions or concerns regarding this Policy or the handling of a
Claim, you should in the first instance refer to your insurance broker or intermediary, if any. If
your problem cannot be resolved in this way, please write to the Claims Manager,
Professional Liability Division, Markel International Limited, The Markel Building, 49
Leadenhall Street, London, EC3A 2EA. We will then advise you of Markel’s internal
complaints handling procedure.
Complaints that cannot be resolved by our internal complaints handling procedure may be
referred to the Financial Ombudsman Service. Further details will be provided at the
appropriate stage of the complaints process.
These complaints procedures do not affect your right to have recourse to legal action or to
any other remedy available to you.
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