1.14 Each Participant shall indemnify and keep indemnified in full hubco (for itself and for the benefit of each relevant Partnering Subcontractor) against all emoluments and all other contractual or statutory payments due to any relevant Transferring Participant Employee or former employee of that Participant in respect of his or her employment by that Participant or its termination by that Participant which relate to any period of employment prior to or on the relevant Transfer Date even if the liability to make any such payment does not arise until on or after the relevant Transfer Date (which shall include any backdated pay award by that Participant), and against all income tax and pension and national insurance contributions payable thereon.
1.15 Insofar as paragraph 1.14 does not apply, each Participant shall indemnify and keep indemnified in full hubco against all Direct Losses sustained by hubco in consequence of any liability which transfers to hubco or the Partnering Subcontractors in accordance with the Transfer Regulations and/or the Directive in relation to any relevant Transferring Participant Employee or former employee of that Participant in respect of his or her employment by that Participant or its termination by that Participant which arises as a result of any act or omission by the Participant occurring before or on the relevant Transfer Date. The provisions of this paragraph 1.15 and of paragraph 1.14 shall not apply in respect of any claim that the terms and conditions of employment relating to Pay (as defined in paragraph 1.19) of Transferring Employees contravene the Legislation (as defined in paragraph 1.19) including but not limited to any claim in respect of an Equal Pay Ruling (as defined in paragraph 1.18).
1.16 Where any liability in relation to any Transferring Participant Employee, or former employee of a Participant in respect of his or her employment by a Participant or its termination which transfers in whole or part in accordance with the Transfer Regulations and/or the Directive arises partly as a result of any act or omission occurring on or before the relevant Transfer Date and partly as a result of any act or omission occurring after the relevant Transfer Date, the relevant Participant shall indemnify and keep indemnified in full hubco against only such part of the Direct Losses sustained by hubco or any Partnering Subcontractor in consequence of the liability as is reasonably attributable to the act or omission occurring before the relevant Transfer Date.
1.17 The indemnities contained in paragraph 1.14 and paragraph 1.15 shall apply as if references in those paragraphs to any Transferring Participant Employee also included a reference to any Transferring Non-Participant Employee to the extent that the relevant Participant recovers any sum in respect of the subject matter of those indemnities from any sub-contractor of the Participant under any indemnity or other legal entitlement it has against such sub-contractor. Each Participant undertakes that it will use all reasonable endeavours to recover any sums under any such entitlement as is mentioned in this paragraph 1.17.
1.18 For the purposes of this paragraph 1:
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means: (a) a determination by an employment tribunal or court of competent jurisdiction or the settlement or compromise to which the relevant Participant shall have consented in either case relating to any claim brought by any Transferring Participant Employee before the 1st anniversary of the Commencement Date against the Participant or hubco or the Partnering Subcontractor under the Legislation (as defined below) that the terms and conditions of employment relating to Pay (as defined below) of Transferring Participant Employees, contravene the Legislation; and/or (b) in relation to any NHS Participant Employee (in relation to their period of employment until the relevant Transfer Date) any alteration to salaries and pay scales prescribed by the Whitley Agreements in order to settle, address or compromise threatened or extant claims under the Legislation against National Health Service employers (to include without limitation NHS Foundation Trust, NHS Trusts, Strategic Health Authorities, Special Health Authorities and Primary Care Trusts) and/or employers engaged as at the Commencement Date or subsequently in the provision of services to National Health Service employers[; and/or][.] (c) in relation to any LGPS Participant Employee any alteration to salaries and pay scales prescribed by the Single Status Agreement in order to settle, address or compromise threatened or extant claims under the Legislation against the Local Authority Participant) and/or employers engaged as at the Commencement Date or subsequently in the provision of services to the Local Authority Participant. |
1.19 For the purposes of this paragraph 1:
means all and any anti-discrimination and equal pay opportunities laws, including but not limited to the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Equal Pay Directive (Council Directive 75/117/EEC), the Equal Treatment Directive (Council Directive 76/207/EEC), Article 141 of the Treaty of Rome, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 | |
"Pay" | means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which a Transferring Participant Employee receives either directly or indirectly in respect of his or her employment, from his/her employer |
1.20 If there is an Equal Pay Ruling relating to Transferring Participant Employees then in respect of the period up to and including the relevant Transfer Date relating to such employees, the cost of such Equal Pay Ruling shall be borne by the relevant Participant in the manner set out in paragraph 1.22 and in respect of any subsequent period the cost shall be borne by hubco and the relevant Partnering Subcontractor.
1.21 If there is an Equal Pay Ruling relating to any employee of a Participant other than one described in paragraph 1.20 then the cost of such Equal Pay Ruling shall be borne by the relevant Participant even if such Equal Pay Ruling arises from a change to the terms and conditions of an employee of hubco or a Partnering Subcontractor.
1.22 Where the costs of an Equal Pay Ruling are to be borne by a Participant pursuant to the provisions of paragraphs 1.20 or 1.21 the Participant shall indemnify hubco and keep it indemnified against Direct Losses arising out of or in connection with the Equal Pay Ruling.
1.23 To avoid doubt Clause 16.3 (Conduct of Claims) applies to the indemnities under paragraphs 1.5, 1.14, 1.15, 1.16 and 1.22.
1.24 To avoid doubt, nothing in paragraphs 1.5, 1.14, 1.15, 1.16 and 1.22 shall impose any liability upon any Participant for any part of any statutory or contractual redundancy payment to any Transferring Employee which is payable as a result of any termination of employment of a Transferring Employee occurring after the relevant Transfer Date.