29.3  Authority Direction23

(a)  In the event that there are any Transferring Employees, the Authority may, at its absolute discretion, issue an Authority Direction.  If the Authority issues an Authority Direction the Contractor shall and shall procure that any sub-contractor shall comply fully with such Authority Direction.  An Authority Direction issued under this clause may include (without limitation) requirements regarding the future employment of any Transferring Employee24 or a requirement that the Contractor and any sub-contractor comply with applicable obligations under the Code where Retained Employees are working on the Services alongside New Employees25.

(b)  If as a direct result of complying with such an Authority Direction, the Contractor or the relevant Sub-Contractor incurs the cost of any additional direct employment costs, an appropriate adjustment to the Unitary Charge will be made, provided that the Contractor shall and shall procure that any sub-contractor takes all reasonable steps requested by the Authority to mitigate any costs and expenses and any adverse effect on industrial or employee relations

_____________________________________________________________________________________________

23  This clause is intended to give the Authority a degree of control and flexibility so that it can ensure that the matter of any Transferring Employees / Retained Transferring Employees is addressed appropriately on a case by case basis.  

24  There may be circumstances where a Transferring Employee is in scope for Redundancy post transfer pursuant to clause 1.2.2(c), but for sensitivity / political / financial / other reasons the Authority would prefer, for example, for that person to be treated as a Retained Employee.  For example, it may be the case that due to enhanced redundancy / early retirement benefits that would be payable to a particular Transferring Employee on Redundancy, it is better value for the Authority to direct the Contractor / sub-contractor to continue such employee's employment as a Retained Employee (and for an appropriate adjustment to be made to the Unitary Charge).

25  Where there are any Retained Transferring Employees engaged in the provision of the Services working alongside New Employees, the Code ought to be applied and the obligations under it complied with.  Due to the nature of non-HRA projects, it is not envisaged that there will be any employees to transfer under TUPE on commencement of the Services.  Therefore, if, for example, only one unexpected employee transferred, it may seem disproportionate to require the Contractor's / sub-contractor's to comply with Code in respect of New Employee's - NB: any policy / commercial decisions in this regard would need to be considered at the time having regard to Code and would need to be approved by HCA .  Where, for example, the Contractor or any sub-contractor is required to comply with Code, it is likely to be better value for money for the Authority if the actual cost implications of complying with Code regarding New Employees' terms and conditions are re-charged to the Authority via an adjustment to the Unitary Charge, rather than the Contractor contingency pricing its bid just in case Code may apply.