Employment Costs (Clause 1.4)
2.27 Given the liabilities and associated employee costs the Contractor will be responsible for post-transfer, Clause 1.4 requires the Authority to provide details of the employees who it is envisaged will transfer to the Contractor.
2.28 Footnote 17 and Appendix 4 contains details of the type of information which is usually sought by Contractors although it is recommended that the Authority should not give any warranty as to the accuracy or completeness of such information since it will inevitably vary from time to time. If the date of the Agreement and the date of transfer are different (i.e. if there will be a number of transfers for a phased implementation) the Authority should provide an updated list a short period before the Relevant Transfer date.
2.29 It is common for the Contractor to require such employee information supplied by the Authority to be contained in a Schedule12 to the Agreement together with details of its remuneration, reorganisation and associated employment costs agreed with the Authority.
2.30 Under Clause 1.4.5, the Contractor is able to adjust such remuneration and reorganisation costs if the information supplied by the Authority is inaccurate, incomplete or if there is new information contained in the Final Employee List applied by the Authority. Clause 1.4.6(a) requires the Authority and the Contractor to discuss how they will deal with there being more employees than originally envisaged, although the Contractor and the Sub-Contractor have a duty under Clause 1.4.6(b) to mitigate any additional costs and adjustments to the Unitary Charge resulting therefrom.
2.31 Clause 1.4.3 has been inserted to deal with new Regulation 11 of TUPE. Regulation 11 requires the transferor to give certain listed information about employees who will transfer to the transferee. Such information must be given at least 14 days before the transfer. The information required to be given is described in TUPE as employee liability information. It must be up to date within the 14 days of when it is given and must be kept updated after it has been given. Failure to provide the information will allow the transferee to bring a claim in the Employment Tribunal for compensation of a minimum of £500 per employee pursuant to Regulation 12(5) of TUPE.
2.32 The required employee liability information to be provided must include:
2.32.1 identity and age of each employee;
2.32.2 relevant statement of terms and conditions of employment (pursuant to Section 1 of the Employment Rights Act 1996) for each employee;
2.32.3 disciplinary procedures taken against/ grievances raised by the employee in the previous 2 years in circumstances the ACAS Code of Practice on Disciplinary and Grievance Procedures applies;
2.32.4 information of any court/tribunal case brought by the employee in the 2 years before the transfer and any that the transferor has reasonable grounds to believe that an employee may bring arising out of the employee's employment with the transferor;
2.32.5 information of any collective agreement which will have effect after the transfer in its application to the employee.
2.33 The existing drafting already provides at clause 1.4.1 for the Authority to provide a large amount of information about the Transferring Employees in its "First Employee List" and under clause 1.5.1 the Authority is to provide details of collective agreements. Therefore the only items from the above list that are not accounted for are:
2.33.1 disciplinary/grievance issues;
2.33.2 Tribunal/court cases - actual and those that might arise;
2.33.3 and possibly things that should be in the section 1 statement. However all of these should be covered in the catch all "terms and conditions of employment and other matters" currently in clause 1.4.1.
2.34 Also under TUPE the employee liability information that must be given is not only in relation to the Transferring Employees but also employees who would have transferred had they not been unfairly dismissed for a transfer related reason before the transfer.
2.35 Clause 1.4.7 contains provisions regulating the calculation of any adjustments to the Unitary Charge which prevent double-counting and duplication and ensure consistency with the Contractor's bid and the rest of the terms of the Agreement. Clause 1.4.9 requires the Authority and the Contractor to co-operate with each other and others to mitigate any expenses or adverse effects on industrial relations as a result of Clauses 1.4.7 and 1.4.8. The Contractor is also required to ensure the relevant Sub-Contractor also co-operates in this regard.
2.36 Clause 1.4.10 requires the Authority and the Contractor (and the Contractor to ensure all of its Sub-Contractors do likewise) to co-operate and ensure the transfer takes place as smoothly as possible and without disruption.
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12 See suggested schedule at Appendix 4.