26.2.  Offer of Employment21

26.2.1.  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 Service Transfer Date under which the terms and conditions including full continuity of employment shall not differ from those enjoyed immediately prior to the Service Transfer Date (except insofar as such terms and conditions relate to old age, invalidity and survivor's 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 Service 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.

26.2.2.  Where any such offer as referred to in clause 26.2.1 is accepted, the Authority shall indemnify and keep indemnified in full the Service Provider on the same terms and conditions as those set out in clauses 26.6.1, 26.6.2 and 26.6.3 of this Agreement as if there had been a Relevant Transfer in respect of each and every Authority Existing Employee who has accepted any such offer and the provisions of clauses 26.4.1 to 26.4.7 shall apply in the event of any resulting increase or decrease in the Remuneration Costs and Reorganisation Costs.

26.2.3.  Where any such offer as referred to in clause 26.2.1 is accepted, the Service Provider shall act and shall procure that each relevant sub-contractor shall act in all respects as if TUPE had applied to each and every Authority Existing Employee who has accepted any such offer and shall comply with clause 27 (Pensions)22 of this Agreement in respect of each and every such employee who was immediately before the Service Transfer Date an Authority Existing Employee.

26.2.4.  For the avoidance of doubt, where any such offer as referred to in clause 26.2.1 is not accepted and TUPE does not apply, the Authority Existing Employee shall remain an employee of the Authority.

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21  In accordance with Circular 3/2003 in contracting with a person for the provision of Services, where those Services 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 transfers under TUPE.  Existing staff are staff who before the Agreement was entered into, carried out or were engaged in the provision of the Services by the Authority.  The clause as drafted does not apply to any existing third party contractor employees who currently provide the services.  It is assumed that the risk in such case lies with that existing third party contractor if there is no TUPE transfer.

22  This confirms that the pensions obligations will also apply as if there had been a TUPE transfer.