26.11.  Offer of Employment on Expiry or Termination

26.11.1.  If TUPE does not apply on the expiry or earlier termination of this Agreement, the Authority shall procure that each Future Service Provider (including the Authority) shall offer employment to the persons employed by the Service Provider or a Sub- Contractor in the provision of the Services immediately before the Return Date.36

26.11.2.  If an offer of employment is made in accordance with clause 26.11.1, the employment shall be on the same terms and conditions (except for entitlement to membership of an occupational pension scheme, which shall be dealt with in accordance with clause 27 (Pensions)  as applied immediately before the expiry or earlier termination of this Agreement including full continuity of employment, except that the Authority or Future Service Provider may at its absolute discretion not offer such terms and conditions if there has been any change to the terms and conditions of the persons concerned in breach of clause 26.9 (Retendering).

26.11.3.  Where any such offer as referred to in clause 26.11.1 is accepted, the Service Provider shall indemnify and keep indemnified in full the Authority and/or any Future Service Provider on the same terms and conditions as those set out in clause 26.6 (Indemnities) of this Agreement as if there had been a Relevant Transfer in respect of each and every employee who has accepted any such offer and for the purposes of this clause 26.11 each and every such employee shall be treated as if they were a Returning Employee.

26.11.4.  For the avoidance of doubt, where any such offer as referred to in clause 26.11 is not accepted and TUPE does not apply, the employee shall remain an employee of the Service Provider or sub-contractor as appropriate.

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36  Authorities should ensure that this obligation is passed on to the new service provider by way of contract.