30.1 The Board and Project Co agree that the Transfer Regulations shall apply to the transfer on one or more dates agreed by the Parties (each a "Relevant Service Transfer Date") to Project Co of responsibility for provision of (or procuring the provision by Service Providers of) the Services76 in accordance with this Agreement and that an Employee Transfer shall take place on each Relevant Service Transfer Date (or such date as may be determined by Law). The Relevant Service Transfer Date in respect of each Service is specified in [ ]77
30.2 As a consequence of Clause 30.1 and in accordance with the Transfer Regulations, the contracts of employment of all Transferring Employees shall (subject to Regulation 5(4A) of the Transfer Regulations) have effect after the Relevant Service Transfer Date (or such other date as may be determined by Law) as if originally made between those employees and the relevant Service Provider except insofar as such contracts relate to an occupational pension scheme.
30.3 The Board and Project Co agree and intend and shall take all reasonable steps to procure that there shall be an Employee Transfer on each occasion on which the identity of a Service Provider changes pursuant to this Agreement and that the contracts of employment of all those employees of the relevant Service Provider wholly or mainly engaged in the provision of the relevant Service or Services immediately before the change of identity of the Service Provider shall have effect (subject to Regulation 5(4A) of the Transfer Regulations) thereafter as if originally made between those employees and the relevant Service Provider except insofar as such contracts relate to an occupational pension scheme78 Project Co shall procure that both the former and the relevant Service Provider shall comply with their obligations under the Transfer Regulations. The provisions of this Clause 30.3 do not apply to the Market Testing procedure which shall be governed by the provisions of Part 17 of the Schedule.79
30.4 If Project Co or the relevant Service Provider dismisses by reason of redundancy a Transferring Board Employee who had he or she been so dismissed before the Relevant Service Transfer Date would have been entitled to a payment pursuant to section 45 of the [General Whitley Agreement] then Project Co shall provide, or shall procure that the relevant Service Provider shall provide, such employee with a payment or other benefit calculated in the same manner as would have been applied on dismissal by reason of redundancy immediately before the Relevant Service Transfer Date80 For these purposes a dismissal by reason of redundancy is one so defined in section 139 Employment Rights Act 1996. If the provisions of this Clause 30.4 and the provisions of Clause 31.8 apply (or would apply but for this provision) to the same circumstances, then the provisions of Clause 31.8 shall apply instead of this Clause 30.4.81
30.5 The Board shall comply with its obligations under the Transfer Regulations in respect of each Employee Transfer pursuant to this Agreement and Project Co shall comply, and shall procure that the relevant Service Provider shall comply, with its obligations (including without limitation the obligation under Regulation 10(3) of the Transfer Regulations) in respect of each Employee Transfer pursuant to this Agreement and each of the Board and Project Co shall indemnify the other against any Direct Losses sustained as a result of any breach of this Clause 30.5 by the party in default.
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76 Where the contract includes the provision of interim services (i.e. responsibility for providing certain services passes to Project Co at some stage between financial close and the handover of the facilities following construction) this clause will need to be amended to reflect this.
77 This is for the parties to decide. A convenient place to show this information may be in Part 14 of the Schedule , which sets out the specification for each service.
78 This wording simply reflects the current provisions of the TUPE regulations, which do not operate so as to transfer pensions entitlement.
79 Projects that are predominantly hard services may still include some soft services that may be subject to market testing or benchmarking.
80 At the time when these provisions were first prepared, there was, as a result of the decision of the lower courts in the Frankling case, some doubt as to whether the TUPE regulations did in fact apply to transfer such benefits. It has since been established on appeal that the benefits do in fact transfer. On that basis this wording is not strictly necessary, but it has been retained in order to avoid doubt as to the parties' intentions.
81 This is to avoid duplication.