29.2 Offer of Employment/Transferring Employees and Retained Transferring Employees

29.2.1 If it is determined or alleged that as a result of the arrangements set out in this Agreement the contract of employment of any person who is or was an Authority Employee [or an Incumbent Provider Employee20] has effect as if originally made between that person and the Contractor or any relevant sub-contractor pursuant to TUPE (Transferring Employee) then either party shall, upon becoming aware of such effect or allegation, notify the other in writing as soon as reasonably practicable thereafter and, in any event, within [ten (10)] Business Days of becoming aware of such effect or allegation (Notification).

29.2.2 Subject to any Authority Direction issued pursuant to clause 29.3 (Authority Direction), following a Notification:

(a) the Authority (or, as applicable, any relevant incumbent provider21) shall have [twenty (20)] Business Days from and including the date of the Notification to offer re-employment to such Transferring Employee (if it wishes to do so) and to procure the acceptance by such Transferring Employee of that offer (Offer Period);

(b) if such offer of re-employment is accepted within the Offer Period, the Authority shall notify the Contractor of this fact in writing and the Contractor shall (or shall procure that or the relevant sub-contractor shall) immediately release the Transferring Employee from his/her employment with the Contractor (or the relevant sub-contractor);

(i) no such offer of employment as referred to in clause 29.2.2(a) has been made, or such offer has been made but not accepted pursuant to clause 29.2.2(a), and

(ii) the Authority has consented (in writing) to any such dismissal (for the avoidance of doubt, the Authority shall not be obliged to consent and, instead, may notify the Contractor that it has issued or will be issuing an Authority Direction pursuant to clause 29.3, notwithstanding this, the Authority will endeavour to provide a response (either way) to any request for consent within [10 (ten)] Business Days of such a request being received from the Contractor);

the Contractor or the relevant sub-contractor shall be entitled to dismiss any or all of the Transferring Employees by reason of Redundancy. The Contractor shall and shall procure that any sub-contractor shall carry out in the required manner any procedural obligation and any obligation to consult with the Transferring Employees or any of them, or their respective representatives, and shall use all reasonable endeavours to mitigate the amount of any costs payable in respect of each Transferring Employee; and

(d) the Authority shall indemnify the Contractor (for itself and on behalf of any relevant Sub-Contractor) against any Transferring Employee Costs22 reasonably incurred by the Contractor (or by a relevant Sub-Contractor) provided that (i) the Contractor (and any relevant Sub-Contractor) has complied fully with its obligations under this clause 29.2.2 (including but not limited to clause 29.2.2(c)(ii) above), and (ii) without prejudice to clauses 29.2.2(b) and 29.2.2(c)(ii), notice of termination of the Transferring Employee's employment is served on the Transferring Employee by a date no later than the date three (3) calendar months and twenty (20) Business Days from and including the Relevant Service Transfer Date.

29.2.3 If any Transferring Employee:

(a) does not accept an offer of re-employment by the Authority within the timescales set out in clause 29.2.2(a); and

(b) is not dismissed by the Contractor or the relevant sub-contractor pursuant to clause 29.2.2(b) within the time scales set out in clause 29.2.2(d)

such Transferring Employee will be treated as having transferred under TUPE to the Contractor or the relevant sub-contractor (Retained Transferring Employee).

29.2.4 Without prejudice to clause 29.3 (Authority Direction), the Contractor or the relevant sub-contractor shall be responsible for all liabilities arising in respect of each Retained Transferring Employee from and including the Relevant Service Transfer Date.

29.2.5 The Authority shall indemnify 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:

(a) in connection with or as a result of any claim or demand (excluding any Equal Pay Ruling or any claim or demand pursuant to any Equal Pay Legislation) by any Retained Authority Transferring Employee arising out of the employment of any such Retained Authority Transferring Employee provided that this arises from any act, fault or omission of the Authority in relation to any such Retained Authority Transferring Employee prior to the Relevant Service Transfer Date (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 a relevant transfer under TUPE; and/or

(b) as a result of an Equal Pay Ruling in respect of any Retained Authority Transferring Employee, to the extent only that such Direct Losses are in respect of the period of the Retained Authority Transferring Employee's employment with the Authority before the Relevant Service Transfer Date.

29.2.6 Subject to 29.2.5(b), where any liability in relation to any Retained Authority Transferring Employee, in respect of his or her employment by the Authority, 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.

29.2.7 The indemnities contained in clause 29.2.5 and the provisions in clause 29.2.6 shall apply as if references in those clauses to any Retained Authority Transferring Employee also included a reference to any Retained Incumbent Provider Transferring Employee and references to any act, fault or omission of the Authority also included a reference to the relevant incumbent provider employer of the Retained Incumbent Provider Transferring Employee prior to the Relevant Service Transfer Date to the extent only that the Authority recovers any sum in respect of the subject matter of those indemnities from such relevant incumbent provider employer of the Retained Incumbent Provider Transferring Employee under any indemnity or other legal entitlement it has against such incumbent provider. The Authority will use all reasonable endeavours to recover any such sums under any such entitlement as in mentioned in this clause 29.2.7.

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20 Optional wording for the Authority to consider - the Authority may only wish to include the wording in square brackets where the Authority is able to recover such sums relating to the indemnity at (e) from the relevant Incumbent Provider under any indemnity or other legal entitlement it has against such Incumbent Provider.

21 Optional wording (see footnotes above).

22 The Authority should be aware that this could include pension scheme related benefits applicable in connection with such termination of employment.