54.3  Offer of Employment43

If TUPE does not apply to any person who is an Authority Existing Employee, the Service Provider shall offer to, or shall procure the offer by the relevant sub-contractor to, each and every such employee a new contract of employment commencing on the Relevant Transfer Date under which the terms and conditions (including full continuity of employment) shall not differ from those enjoyed immediately prior to the Relevant Transfer Date (except insofar as such terms and conditions relate to old age, invalidity and survivors' benefits under an occupational pension scheme and the offer shall be in writing, shall be open to acceptance for a period of not less than ten (10) Business Days and shall be made:

(a)  if it is believed that TUPE will not apply to a person, not less than ten (10) Business Days before the Relevant Transfer Date; or

(b)  if it is believed that TUPE applies to a person but it is subsequently decided that TUPE does not so apply, as soon as is practicable and in any event no later than ten (10) Business Days after that decision is known to the Service Provider.

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43  In accordance with Circular 03/2003 in contracting with a person for the provision of Service, where those Service are, immediately prior to the Agreement, provided by the Authority, the Authority must, if the contract would not amount to a relevant transfer under TUPE, ensure that the contract provides that the Service Provider is required to offer employment to existing staff on the same terms and conditions as if this were a relevant transfer under TUPE.  Existing staff are staff who before the Agreement was entered into, carried out or were engaged in the provision of the Service by the Authority.  The clause as drafted does not apply to any existing third party contractor employees who currently provide the Service. It is assumed that the risk in such case lies with that existing third party contractor if there is no TUPE transfer.