1.1 On the expiry or earlier termination of this Agreement, in respect of one or more Participant, each of the Participants and hubco agree that it is their intention that the Transfer Regulations shall apply in respect of the provision thereafter of any service equivalent to a Partnering Services but the position shall be determined in accordance with the Law at the date of expiry or termination as the case may be and this paragraph is without prejudice to such determination. For the avoidance of doubt, for the purposes of this Schedule Part 20 (Handover on Expiry or Termination), the term "Supply Chain Member" shall be construed as including any contractors or subcontractors engaged by hubco or any Supply Chain Member in connection with the delivery of the Partnering Services.
1.2 On the expiry or earlier termination of this Agreement in respect of one or more Participant, where the Transfer Regulations apply, the contracts of employment of all employees who immediately prior to the Transfer Event are wholly or mainly engaged on the service or services which are the Partnering Services and which are the subject of the Transfer Event ("Assigned Staff") shall transfer on the basis of the Transfer Regulations and have effect after the Transfer Event as if originally made between the Assigned Staff and the relevant Participant(s) and/or any new contractor.
1.3 Where the Transfer Regulations apply as aforesaid, the relevant parties shall take all reasonable steps to ensure that a smooth transition is effected in respect of the transfer of the contracts of employment of the Assigned Staff from the Transfer Event and the relevant Participant shall comply and procure that, where appropriate, any new contractors shall comply with their obligations under Regulation 13 of the Transfer Regulations.
1.4 If the Transfer Regulations do not apply on expiry or earlier termination of this Agreement in respect of one or more Participant, the relevant Participant(s) shall ensure that each new provider (if any) of a service equivalent to a Partnering Service on or after expiry or termination of this Agreement (including the relevant Participant(s)) shall offer employment to the persons employed by hubco or a Supply Chain Member providing any of the Partnering Service in the provision of the Partnering Services immediately before the expiry or termination of this Agreement and shall indemnify hubco or a Partnering Subcontractor for Direct Losses any of them suffer or incur as a result of its failure to do so, and for any costs, claims or liabilities for redundancy payments (whether statutory or contractual)45.
1.5 If an offer of employment is made in accordance with paragraph 1.4 above, the employment shall be on the same terms and conditions (except for entitlement to membership of an occupational pension scheme, which shall be dealt with in accordance with paragraph 2 of Section 1 (General) of Schedule Part 15 (Transfer of Employment and Pensions) as applied immediately before the expiry or earlier termination of this Agreement including full continuity of employment, except that the relevant Participant(s) or other new service provider may at its absolute discretion not offer such terms and conditions if there has been any change to the terms and conditions of the persons concerned in breach of paragraph 1.9 below.
1.6 Save where any such Direct Losses are as a result of any act or omission of a Participant or its subcontractors, hubco shall indemnify, and keep indemnified, each Participant and, at the Participant's request, each and every service provider who shall provide any service equivalent to any of the Partnering Services after a Transfer Event against all Direct Losses sustained by the Participant arising in connection with:
1.6.1 any act or omission in respect of any of the Assigned Staff by hubco or a Partnering Subcontractor prior to the Transfer Event (including without limitation the employment or termination of the employment of any of the Assigned Staff), and hubco's or a Partnering Subcontractor's obligations under Regulation 13 of the Transfer Regulations but excluding in relation to any occupational pension scheme;
1.6.2 any claim by any person arising from any negligent act or omission of any of the Assigned Staff prior to the Transfer Event;
1.6.3 any claim for personal injury sustained by any of the Assigned Staff the cause of action of which arose during their employment prior to the Transfer Event save that in this respect the indemnity given by hubco shall extend only to such sum as is referable to the period of employment with hubco or a Partnering Subcontractor;
1.6.4 any employees or former employees of hubco or of any provider of a service or services which are Partnering Services who are not identified to the relevant Participant(s) as being Assigned Staff prior to the relevant Transfer Event arising out of any claim that their employment or any liability in respect of their employment or its termination has or should have transferred to the relevant Participant(s) and/or any new contractor pursuant to the Transfer Regulations and/or the arrangements contemplated by the relevant agreement; and
1.6.5 all emoluments and other contractual or statutory payments or parts thereof due to any Assigned Staff member arising before the Transfer Event or which fall due for payment after the Transfer Event but which relate to any period before that date (including, for the avoidance of doubt, any liabilities arising in relation to any equal pay claims relating to the Assigned Staff).
1.7 Clause 16.3 (Conduct of Claims) shall apply where any claim is made in respect of the indemnities given by hubco under paragraph 1.6.
1.8 For the avoidance of doubt, nothing in paragraph 1.6 shall impose any liability on hubco for any part of any statutory or contractual redundancy payment to any Assigned Staff member which is payable as a result of any termination of employment occurring on or after the Transfer Event.
1.9 Subject to its obligations under the Data Protection Act 1998 no less than twelve (12) months prior to a Transfer Event, hubco shall supply or shall procure the supply of details of the Assigned Staff to the relevant Participant(s) and/or at the direction of the relevant Participant(s), to any new contractor, and shall advise the relevant Participant(s) and any new contractor of any alteration thereto occurring prior to the Transfer Event. These details (being the "Retendering Information") are to include the names of the Assigned Staff and in respect of each one, the:
1.9.1 terms of employment (including full particulars of emoluments and benefits);
1.9.2 date of commencement of employment;
1.9.3 current job title and details of proportion of time spent working on the Partnering Services;
1.9.4 any professional bodies, trade unions and other bodies of which the Assigned Staff are members and the identity of any representatives of such bodies of which hubco and the relevant Partnering Subcontractor is aware; and
1.9.5 full details of any actions, claims or disputes involving any Assigned Staff of which hubco and any of the Partnering Subcontractor is aware or anticipates.
1.10 hubco shall inform the Participants of any changes to the information given pursuant to this paragraph 1.10. hubco shall indemnify and keep indemnified in full each Participant and at the Participant's request any new contractor against all Direct Losses arising from any claim by any party as a result of hubco or Partnering Subcontractor failing to provide or promptly to provide the Participant or at the Participant's request any new contractor with any Retendering Information and/or Employee Liability Information or to provide full Retendering Information and/or Employee Liability Information or as a result of any material inaccuracy in or omission from the Retendering Information and/or Employee Liability Information.
1.11 From the later of the period beginning twelve (12) months prior to the Transfer Event or from the date on which notice of termination is served hubco shall not and shall procure that any Partnering Subcontractor shall not:
1.11.1 enter into any negotiation with or make any offer to the Assigned Staff or any of them concerning the terms of their employment other than in the normal course of business without the Participants' consent (which shall not be unreasonably withheld). Nothing in this paragraph shall prevent hubco or its Partnering Subcontractor from implementing any statutory requirements or any terms and conditions agreed with the workforce collectively prior to this period;
1.11.2 seek or make any alteration to the numbers of Assigned Staff or those employees identified as Assigned Staff without the Participant's consent (which shall not be unreasonably withheld) save in the event of resignation or dismissal for misconduct or poor performance;
1.11.3 transfer any of the Assigned Staff to another part of its business or move other employees from elsewhere in its or their business who have not previously been engaged in providing the Partnering Services to provide the Partnering Services save with the Participants' consent (which shall not be unreasonably withheld).
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45 Participants should ensure that this obligation is passed on to the new service provider by way of contract.