2.A.18.  Offer of Employment on Expiry or Termination

If TUPE does not apply on the expiry or earlier termination of this Agreement, the Authority shall procure that each Future Service Provider (including the Authority) shall offer employment to the persons employed by the Contractor or a Sub-Contractor in the provision of the Services immediately before the Return Date.144

(a)  If an offer of employment is made in accordance with this paragraph 2.A.18, 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 3 (Pensions)) as applied immediately before the expiry or earlier termination of this Agreement including full continuity of employment, except that the Authority or Future 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 2.A.16;

(b)  Where any such offer as referred to in paragraph 2.A.18(a) is accepted, the Contractor shall indemnify and keep indemnified in full the Authority and/or any Future Service Provider on the same terms and conditions as those set out in paragraph 2.A.13 as if there had been a Relevant Transfer in respect of each and every employee who has accepted any such offer and for the purposes of this paragraph 2.A.18 each and every such employee shall be treated as if they were a Returning Employee;

(c)  Where any offer as referred to in paragraph 2.A.18(a) is not accepted and TUPE does not apply, the relevant employee shall remain an employee of the Contractor or Sub-Contractor as appropriate.

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144  Authorities should ensure that this obligation is passed on to the new service provider by way of contract.