30.5 to 30.10

30.5  If at any time (including, for the avoidance of doubt, after the submission of the Final Employee List) the Remuneration Costs and/or the Reorganisation Costs require to be adjusted on account of any differences between the information contained in the First Employee List and that contained in the Final Employee List, or on account of any inaccuracies in or omissions from the information contained in the First Employee List or the Final Employee List then (subject to clauses 30.6, 30.7 and 30.8) there shall be a corresponding adjustment to the Unitary Charge to compensate for any such difference132.

30.6  If the circumstances described in clause 30.5 arise:

30.6.1  in circumstances where there are more Relevant Employees than shown on the Final Employee List then the parties shall discuss the implications for the provision of Services; and

30.6.2  the Contractor and the relevant sub-contractor shall take all reasonable steps to mitigate any additional costs and any adjustment to the Unitary Charge shall be calculated as if they had done so.

30.7  In calculating any adjustment to be made to the Unitary Charge pursuant to clause 30.5:

30.7.1  no account shall be taken of a decrease in the Remuneration Costs or Reorganisation Costs to the extent that it:

(a)  arises from a reduction in the number of Relevant Employees or their whole time equivalent such that there are, immediately after the Relevant Service Transfer Date, fewer suitably qualified persons available than are required in order to establish the Proposed Workforce; and

(b)  the Contractor has employed replacement staff on equivalent remuneration and has used all reasonable endeavours to mitigate all expenses in recruiting and employing such replacement staff.133;

30.7.2  to avoid double counting, no account shall be taken of any change to the Remuneration Costs or the Reorganisation Costs to the extent that the Contractor has been or will be compensated as a result of any indexation of the Unitary Charge under this Agreement;

30.7.3  to avoid doubt any changes in costs which fall to be dealt with under clause 30.5 and which arise from a Change in Law shall be dealt with in accordance with the provisions of clause 30.5 and shall not be taken into account for the purposes of clause 59 (Change in Law);

30.7.4  no adjustments under clause 30.5 shall be made in respect of overpayments made by the Contractor or a sub-contractor to Relevant  Employees which arise from reliance on the Final Employee List to the extent that the Contractor or the sub-contractor is unable to correct overpayments in respect of continuing employment having taken reasonable steps to do so134;

30.7.5  if there are underpayments by the Contractor or a sub-contractor to Relevant Employees, whether claimed or established as unlawful deductions from wages or as a breach of contract, which arise from reliance on the Final Employee List, there shall be an immediate increase to the Unitary Charge in respect of all such liabilities of the Contractor or the sub-contractor for all such underpayments which are retrospective (save that any such liabilities which relate to the period prior to the Relevant Service Transfer Date shall be dealt with in accordance with clauses 30.3.1 or 30.12.1 to 30.12.3) and an appropriate increase in respect of such liabilities of the Contractor which represent ongoing costs;

30.7.6  in order to prevent duplication, no adjustment shall be made under this clause 30.7 if any indemnity given by the Authority under any other provision of this Agreement would apply; and

30.7.7  no adjustments under clause 30.5 shall be made to the extent that any payment is made to the Contractor or sub-contractor under Regulation 12 of TUPE.

30.8  Either party may propose an adjustment to Unitary Charge pursuant to clause 30.5 by giving not less than [ten (10)] Business Days notice to the other.  Each party will provide or procure the provision to the other, on an open book basis, access to any information or data which the other party reasonably requires for the purpose of calculating or confirming the calculation of any adjustment pursuant to clause 30.5.

30.9  In relation to all matters described in clauses 30.6 and 30.7 the Contractor and the Authority shall, and the Contractor shall procure that the relevant sub-contractor shall, co-operate with the other or others and take all reasonable steps to mitigate any costs and expenses and any adverse effect on industrial or employee relations.

30.10  The Authority shall and the Contractor shall and shall procure that each and every sub-contractor shall take all reasonable steps, including co-operation with reasonable requests for information, to ensure that each and every Relevant Transfer pursuant to this Agreement takes place smoothly with the least possible disruption to the services of the Authority including the Services and to the employees who transfer.

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132 This is how the Contractor is compensated for any mismatch between the information it was given about the workforce when bidding and the correct information based on the actual workforce at the time of service transfer.

133 If insufficient numbers of staff to establish the Contractor’s projected workforce are in place at the time of service transfer, this does not reduce the Contractor’s staff costs, because additional staff will have to be recruited to fill the gaps.  If there is re-profiling before Transfer at the request of the Contractor or if other changes have been included in pricing assumptions then this Clause should be amended to reflect costing assumptions.  

134 The Contractor may have made binding contractual commitments, having relied in good faith on information provided by the Authority