30.12  Indemnities

30.12.1  The Authority shall indemnify and keep indemnified in full the Contractor (for itself and for the benefit of each relevant Sub-Contractor) against all Direct Losses incurred by the Contractor or any relevant Sub-Contractor in connection with or as a result of:

(a)  a breach by the Authority of its obligations under clause 30.3.1 above; and

(b)  subject to [clause 30.12.1(c) and] clause 30.12.5 any claim or demand by any Transferring Employee arising out of the employment of any Transferring Employee provided that this arises from any act, fault or omission of the Authority in relation to any Transferring Employee prior to the date of the Relevant Transfer (save where such act, fault or omission arises as a result of the Contractor's or any relevant sub-contractor's failure to comply with Regulation 13 of TUPE) and any such claim is not in connection with the Relevant Transfer including any act, fault or omission that leads to an Equal Pay Ruling; [and]

(c)  [where the costs of an Equal Pay Ruling are to be borne by the Authority pursuant to the provisions of clauses 30.12.1(b) or 30.14.9 in respect of all future payments to the Transferring Employees and/or New Employees following the [Decision Date] then the Unitary Charge shall immediately be adjusted in respect of all such future payments to the Transferring Employees and/or New Employees by adding the costs of such Equal Pay Ruling to the Unitary Charge as are appropriate on an ongoing basis until the date of any Market Testing. For the avoidance of doubt, in respect of all payments relating to the period prior to the [Decision Date] the Authority shall indemnify and keep indemnified in full the Contractor (for itself and for the benefit of each relevant Sub-Contractor) against all Direct Losses incurred by the Contractor or any relevant Sub-Contractor in connection with or as a result of the Equal Pay Ruling].139

30.12.2  Where any liability in relation to any Transferring Employee, in respect of his or her employment by the Authority or its termination which transfers in whole or part in accordance with TUPE and/or the 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 Authority shall indemnify and keep indemnified in full the Contractor or the relevant Sub-Contractor against only such part of the Direct Losses sustained by the Contractor or any Sub-Contractor in consequence of the liability as is reasonably attributable to the act or omission occurring before the Relevant Service Transfer Date.

30.12.3  The indemnities contained in clause 30.12.1 shall apply as if references in those clauses to any Transferring Employee also included a reference to any Relevant Employee and references to any act, fault or omission of the Authority also included a reference to the relevant Third Party Contractor employer of the Relevant Employee prior to the Relevant Service Transfer Date to the extent that the Authority recovers any sum in respect of the subject matter of those indemnities from such Third Party Contractor under any indemnity or other legal entitlement it has against such Third Party Contractor.  The Authority will use all reasonable endeavours to recover any such sums under any such entitlement as in mentioned in this clause 30.12.3.

30.12.4  The Contractor shall indemnify and keep indemnified in full the Authority, and at the Authority's request each and every service provider who shall provide any service equivalent to any of the Services immediately after expiry or earlier termination of this Agreement ("Future Service Provider") against:

(a)  all Direct Losses incurred by the Authority or any Future Service Provider in connection with or as a result of any claim or demand against the Authority or any Future Service Provider by any person who is or has been employed or engaged by the Contractor or any Sub-Contractor in connection with the provision of any of the Services where such claim arises as a result of any act, fault or omission of the Contractor and/or any sub-contractor after the Relevant Service Transfer Date;

(b)  all Direct Losses incurred by the Authority or any Future Service Provider in connection with or as a result of a breach by the Contractor of its obligations under clause 30.3.2 above; and

(c)  all Direct Losses incurred by the Authority or any Future Service Provider in connection with or as a result of any claim by any trade union or staff association or employee representative (whether or not recognised by the Contractor and/or the relevant sub-contractor in respect of all or any of the Relevant Employees) arising from or connected with any failure by the Contractor and/or any sub-contractor to comply with any legal obligation to such trade union, staff association or other employee representative whether under Regulations 13 and 14 of TUPE or any award of compensation under Regulation 15 of TUPE, under the Acquired Rights Directive or otherwise and, whether any such claim arises or has its origin before or after the date of the Relevant Service Transfer Date.

30.12.5  The Contractor shall indemnify and keep indemnified in full the Authority, against all Direct Losses incurred by the Authority in connection with or as a result of:

(a)  the change or identity of employer occurring by virtue of TUPE to the Contractor or the relevant sub-contractor being significant and detrimental to any of the Relevant Employees or to any person who would have been a Relevant Employee but for their resignation (or decision to treat their employment as terminated under Regulation 4(9) of TUPE) on or before the Relevant Service Transfer Date as a result of the change in employer and whether such claim arises before or after the Relevant Service Transfer Date;

(b)  any proposed or actual change by the Contractor or any sub-contractor to the Relevant Employees' working conditions, terms or conditions or any proposed measures of the Contractor or the relevant sub-contractor which are to any of the Relevant Employee's material detriment or to the material detriment of any person who would have been a Relevant Employee but for their resignation (or decision to treat their employment as terminated under Regulation 4(9) of TUPE) on or before the Relevant Service Transfer Date as a result of any such proposed changes or measures and whether such claim arises before or after the Relevant Service Transfer Date; and

(c)  any claim arising out of any misrepresentation or mis-statement whether negligent or otherwise made by the Contractor or sub-contractor to the Relevant Employees or their representatives whether before on or after the Relevant Service Transfer Date and whether liability for any such claim arises before on or after the Relevant Service Transfer Date.

30.12.6  For the avoidance of doubt, the indemnities in clauses 30.12.4 and 30.12.5 shall not apply in respect of any sum for which the Authority is to indemnify the Contractor or a relevant Sub-Contractor pursuant to clause 30.12.1 or as a result of any adjustment to the Unitary Charge in accordance with clause 30.5 or to the extent that the claim arises from a wrongful act or omission of the Authority.

30.12.7  Clause 63.5 (Conduct of Claims) of this Agreement shall apply where any claim is made in respect of the indemnities given under clause 30.12.

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139 This wording should be inserted where the Authority decides to adjust the Unitary Charge following an Equal Pay Ruling instead of simply relying on an indemnity.