30.9 The Board has supplied to Project Co the information, as at the date of this Agreement, which is contained in Part 30 of the Schedule (the "First Employee List") regarding the identity, number, age, sex, length of service, job title, grade and terms and conditions of employment of and other matters84 affecting each of those employees of the Board and of any sub-contractor of the Board who it is expected, if they remain in the employment of the Board or of the sub-contractor of the Board as the case may be until immediately before the Relevant Service Transfer Date, would be Transferring Employees but the Board gives no warranty as to the accuracy or completeness of this information.85
30.10 The Board shall supply to Project Co an update of the First Employee List at three-monthly intervals from the date of this Agreement and an updated list shall also be provided ten (10) Business Days before each Relevant Service Transfer Date. The Board shall also supply to Project Co within five (5) Business Days after each Relevant Service Transfer Date information, which was correct as at that Relevant Service Transfer Date, in respect of the Transferring Employees on all the same matters as should be provided in the First Employee List. This list is the "Final Employee List" and where there is more than one Relevant Service Transfer Date the "Final Employee List" means each list so prepared in respect of each Service and at each Relevant Service Transfer Date. The Board gives and shall give no warranty as to the accuracy or completeness of any information contained in any update of the First Employee List or in the Final Employee List.86
30.11 Project Co has provided to the Board, and the Board has agreed, the details set out in Part [30] of the Schedule (Proposed Workforce Information) which show, in respect of each of the Services, the following information:
(a) the workforce with Project Co proposes to establish to provide the Services (the "Proposed Workforce") classified by reference to grade, job description, hours worked, shift patterns, pay scales, rates of pay and terms and conditions;87
(b) the monthly costs of employing the Transferring Employees who are expected to be engaged in the provision of the Services [or Interim Services]. These costs (the "Remuneration Costs") have been calculated on the basis of (amongst other things) the information contained in the First Employee List;88
(c) the costs, including any lump sum payments, which Project Co has allowed for the purposes of any reorganisation which may be required to establish the Proposed Workforce or a workforce which is as close as reasonably practicable to the Proposed Workforce (including but not limited to costs associated with dismissal by reason of redundancy or capability and costs of recruitment. These costs (the "Reorganisation Costs") have been calculated by Project Co and the Service Providers on the basis of (amongst other things) the information contained in the First Employee List. 89
30.12 If at any time (including, for the avoidance of doubt, after the submission of the Final Employee List) the Remuneration Costs and/or the Reorganisation Costs require to be adjusted on account of any differences between the information contained in the First Employee List and that contained in the Final Employee List, or on account of any inaccuracies in or omissions from the information contained in the First Employee List or the Final Employee List then (subject to Clauses 30.13, 30.14 and 30.15) there shall be a corresponding adjustment to [the Interim Service Payments and] the Service Payments to compensate for any such difference.9091
30.13 If the circumstances described in Clause 30.12 arise:
(a) in circumstances where there are more Transferring Employees than shown on the Final Employee List then the parties shall discuss the implications for the provision of Services [or Interim Services], and the implementation of the Board Policy relating to change;
(b) Project Co and the relevant Service Provider shall take all reasonable steps to mitigate any additional costs and any adjustment to [the Interim Service Payments or] the Service Payments shall be calculated as if they had done so.
30.14 In calculating any adjustment which shall be made to [the Interim Service Payments or] the Service Payments pursuant to Clause 30.12:
(a) no account shall be taken of a decrease in the [Remuneration Costs or Reorganisation Costs] to the extent that it arises from a reduction in the number of Transferring Employees or their whole time equivalent [such that there are, immediately after the Relevant Service Transfer Date, fewer suitably qualified persons available than are required in order to establish the Proposed Workforce];92
(b) to avoid double counting, no account shall be taken of any change to the [Remuneration Costs or the Reorganisation Costs] to the extent that Project Co has been or will be compensated as a result of any indexation of the [Interim Service Payments or] the Service Payments under this Agreement;
(c) to avoid doubt any changes in costs which fall to be dealt with under Clause 30.12 and which arise from a Change in Law shall be dealt with in accordance with the provisions of Clause 30.12 and shall not be taken into account for the purposes of Clause 39;
(d) no adjustments under Clause 30.12 shall be made in respect of overpayments made by Project Co or a Service Provider to Transferring Employees which arise from reliance on the Final Employee List to the extent that Project Co or the Service Provider is unable to correct overpayments in respect of continuing employment having taken reasonable steps to do so;93
(e) if there are underpayments by Project Co or a Service Provider to Transferring Employees, whether claimed or established as unlawful deductions from wages or as a breach of contract, which arise from reliance on the Final Employee List, there shall be an immediate increase to the Interim Service Payment or Service Payment (as the case may be) in respect of all such liabilities of Project Co or the Service Provider for all such underpayments which are retrospective (save that any such liabilities which relate to the period prior to the Relevant Service Transfer Date shall be dealt with in accordance with Clauses 30.20 or 30.21) and an appropriate increase in respect of such liabilities of Project Co which represent ongoing costs but this provision shall not apply to any underpayment relating to an Equal Pay Ruling (which underpayment shall be dealt with in accordance with Clauses 30.24 and 30.27).
To the extent that it is appropriate to do so, in order to ensure that the parties are treated fairly and reasonably, a lump sum payment may be made in place of some or all of any adjustment referred to above which would otherwise have been required to [the Interim Service Payments and/or] the Service Payments.
30.15 Either party may propose an adjustment to [the Interim Service Payments or] the Service Payments pursuant to Clause 30.12 by giving not less than ten (10) Business Days notice to the other. Each party will provide or procure the provision to the other on an open book basis access to any information or data which the other party reasonably requires for the purpose of calculating or confirming the calculation of any adjustment pursuant to Clause 30.12.
30.16 In relation to all matters described in Clause 30.13, Project Co and the Board shall, and Project Co shall procure that the relevant Service Provider shall, co-operate with the other or others and take all reasonable steps to mitigate any costs and expenses and any adverse effect on industrial or employee relations.
30.17 The Board shall and Project Co shall and Project Co shall procure that each and every Service Provider shall take all reasonable steps, including co-operation with reasonable requests for information, to ensure that each and every Employee Transfer pursuant to this Agreement takes place smoothly with the least possible disruption to the services of the Board including the Services [and Interim Services] and to the employees who transfer.
30.18 The Board shall and shall procure if it has the contractual or legal powers to do so and shall otherwise use all reasonable endeavours to procure that every relevant sub-contractor of the Board shall supply to Project Co no later than five (5) Business Days prior to the Relevant Service Transfer Date true copies of its Recognition Agreement(s) and Project Co shall and shall procure that each and every Service Provider shall in accordance with the Transfer Regulations recognise the trade unions representing Transferring Employees (as relevant to each Service Provider) after the transfer to the same extent as they were recognised by the Board or the relevant sub-contractor before the Relevant Service Transfer Date.
30.19 Project Co shall procure that, on each occasion on which the identity of a Service Provider changes pursuant to this Agreement, in the event that there is an Employee Transfer, the new Service Provider shall in accordance with the Transfer Regulations recognise the trade unions representing the employees whose contracts of employment transfer to the new Service Provider to the same extent as they were recognised before the change of identity of the Service Provider in respect of the provision of the Services at the Board's premises. The provisions of this Clause 30.19 do not apply to the Market Testing Procedure which shall be governed by the provisions of Part 17 of the Schedule (Market Testing Procedure).
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84 The list would normally show:
1. Staff ref no
2. DoB
3. Age
4. Job Title
5. Start Date
6. Continuous Service Date - length of reckonable NHS service
7. Contracted hours
8. Sex (M/F)
9. Site
10. Department
11. NI letter (A or D)
12. Scale and point
13. Salary
14. Superannuation
15. Allow/deduction code.
NB. This is not necessarily an exhaustive list.
85 The information provided by the Board prior to financial close is almost certain to be inaccurate by the time service transfer occurs, if only because there are likely to be changes to the workforce in the meantime, for example because of staff turnover. The document does not, therefore, focus on the giving of warranties in support of the information given. In the circumstances, this is somewhat meaningless. It is more important to ensure that Project Co's price can be adjusted in a way which reflects the differences between the information about the Board's workforce given to Project Co when its bid was priced (this can be adjusted prior to financial close to reflect up to date information) and the actual workforce which Project Co inherits.
86 Clause 30.12 allows for further adjustments to be made where information contained in the final list is incorrect.
87 These details are taken from Project Co's final bid. Boards and their advisors should ensure that sufficient details are included in bids to ensure that all the assumptions made by bidders are transparent. Otherwise, it will be difficult for Boards to audit the adjustments which are to be made to the Unitary Charge to reflect changes in the employee information in the Final Employee List
88 In other words, these costs are the allowance made by Project Co in its bid for continuing payments of salary, NI, pensions contributions, etc to the workforce it proposes to establish to provide the Services.
89 These costs are the non-recurring costs of establishing Project Co's workforce. These might include, for example, possible redundancy costs if the workforce which Project Co expects to inherit from the Board does not match the required profile. NB - it is assumed for the purposes of this document that any re-profiling of the workforce is carried out by Project Co after the Relevant Service Transfer Date. If it has been agreed that the Board will undertake this responsibility, the wording may need review.
90 This is how Project Co is compensated for any mismatch between the information it was given about the workforce when bidding and the correct information based on the actual workforce at the time of service transfer.
91 NB - it is assumed for the purposes of this document that exactly the same arrangements will apply during any period of interim services, but there may be practical reasons why this is not always the case. For example there have been cases where it has been agreed that payroll functions will be handled by the Board during the interim services period. Such arrangements are project specific and may require additional drafting.
92 If insufficient numbers of staff to establish Project Co's projected workforce are in place at the time of service transfer, this does not reduce Project Co's staff costs, because additional staff will have to be recruited to fill the gaps. If there is re-profiling before Transfer at the request of Project Co or if other changes have been included in pricing assumptions then this Clause should be amended to reflect costing assumptions. NOTE: If bids have been invited on the basis that the Board will assume costs of redundancy this Clause will need to be developed to reflect the bid.
93 Project Co may have made binding contractual commitments, having relied in good faith on information provided by the Board.