30.20 The Board shall indemnify and keep indemnified in full Project Co (for itself and for the benefit of each relevant Service Provider) against all emoluments and all other contractual or statutory payments due to any Transferring Board Employee94, or former employee of the Board in respect of his or her employment by the Board or its termination by the Board which relate to any period of employment prior to or on the Relevant Service Transfer Date even if the liability to make any such payment does not arise until on or after the Relevant Service Transfer Date (which shall include any backdated pay award by the Board), and against all income tax and pension and national insurance contributions payable thereon.
30.21 Insofar as Clause 30.20 does not apply, the Board shall indemnify and keep indemnified in full Project Co against all Direct Losses sustained by Project Co in consequence of any liability which transfers to Project Co or a Service Provider in accordance with the Transfer Regulations and/or the Acquired Rights Directive in relation to any Transferring Board Employee or former employee of the Board in respect of his or her employment by the Board or its termination by the Board which arises as a result of any act or omission by the Board occurring before or on the Relevant Service Transfer Date. The provisions of this Clause 30.21 and of Clause 30.20 shall not apply in respect of any claim that the terms and conditions of employment relating to Pay (as defined in Clause 30.25(b)) of Transferring Board Employees contravene the Legislation including but not limited to any claim in respect of an Equal Pay Ruling (as defined in Clause 30.24).
30.22 Where any liability in relation to any Transferring Board Employee, or former employee of the Board in respect of his or her employment by the Board or its termination which transfers in whole or part in accordance with the Transfer Regulations and/or the Acquired Rights Directive arises partly as a result of any act or omission occurring on or before the Relevant Service Transfer Date and partly as a result of any act or omission occurring after the Relevant Service Transfer Date, the Board shall indemnify and keep indemnified in full Project Co against only such part of the Direct Losses sustained by Project Co in consequence of the liability as is reasonably attributable to the act or omission occurring before the Relevant Service Transfer Date.
30.23 The indemnities contained in Clause 30.20 and Clause 30.21 shall apply as if references in those Clauses to any Transferring Board Employee also included a reference to any Transferring Private Sector Employee to the extent that the Board recovers any sum in respect of the subject matter of those indemnities from any sub-contractor of the Board under any indemnity or other legal entitlement it has against such sub-contractor. The Board undertakes that it will use all reasonable endeavours to recover any sums under any such entitlement as is mentioned in this Clause 30.23.95
30.24 For the purposes of this Clause 30:
"Equal Pay Ruling" means:
(a) A determination by an employment tribunal or court of competent jurisdiction or the settlement or compromise to which the Board shall have consented in either case relating to any claim brought by any Transferring Board Employee before [insert date falling 4 years after the date of the Relevant Service Transfer Date ]96 against the Board or Project Co or a Service Provider under the Legislation (as defined below) that the terms and conditions of employment relating to Pay (as defined below) of Transferring Board Employees, contravene the Legislation; and/or
(b) in relation to any Transferring Board Employee (in relation to their period of employment until the Relevant Service Transfer Date), any alteration to salaries and payscales prescribed by the Whitley Agreements in order to settle, address or compromise threatened or extant claims under the Legislation against National Health Service employers and/or employers engaged as at the date of this Agreement or subsequently in the provision of services to National Health Service employers.
30.25 For the purposes of this Clause 30:
(a) the "Legislation" 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;
(b) "Pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the Board Transferring Employee receives either directly or indirectly in respect of his or her employment, from his/her employer.
30.26 If there is an Equal Pay Ruling relating to Transferring Board Employees then in respect of the period up to and including the Relevant Service Transfer Date relating to such employees, the cost of such Equal Pay Ruling shall be borne by the Board in the manner set out in Clause 30.27 and in respect of any subsequent period the cost shall be borne by Project Co.
30.27 Where the costs of an Equal Pay Ruling are to be borne by the Board pursuant to the provisions of Clause 30.26 then the [Interim Service Payments and/or the] Service Payments shall immediately be adjusted in respect of all prospective payments by adding the direct costs of such Equal Pay Ruling to the [Interim Service Payments or the] Service Payments. In respect of all payments relating to the period before the date of the Equal Pay Ruling, the Board shall indemnify Project Co and keep it indemnified against Direct Losses arising out of or in connection with the Equal Pay Ruling.
30.28 To avoid doubt Clause 8.3 applies to the indemnities under Clauses 30.20, 30.21, 30.22 and 30.27.
30.29 To avoid doubt, nothing in Clauses 30.20 or 30.21 shall impose any liability upon the Board 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 Service Transfer Date.
______________________________________________________________
94 If there are existing private sector providers of Services to the Board consider the contracts with those providers should be examined to establish if a similar obligation exists in favour of the Board. If so, the Board should consider if better value for money would be obtained this Clause and the next one were to extend to all Transferring Employees.
95 See earlier footnote re the need to review existing contracts.
96 Precedent exists for the cut-off point for claims against the Board to be the Relevant Service Transfer Date itself, which would have been a much earlier date, but it is suggested that Boards adopt the suggestion in the text as a reasonable compromise, in cases where there is a transfer of services at a relatively early date.