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The Council and the Contractor agree that where the identity of a provider (including the Council) of the Services is changed pursuant to the Contract (including upon termination of the Contract) then the change may constitute a Relevant Transfer. On the occasion of each Relevant Transfer (including a Relevant Transfer upon termination of this Contract), the Contractor shall comply with all of its obligations under the Regulations and the Directive in respect of the Relevant Employees.
The Contractor shall be responsible for all remuneration, benefits, entitlements and outgoings in respect of the Relevant Employees, including without limitation all wages, holiday pay, bonuses, commission, payment of PAYE, national insurance contributions, pension contributions and otherwise, from and including the date of a Relevant Transfer.
The Contractor shall ensure that all Transferring Employees are offered membership of the pension scheme of which they were, or were eligible to be, members prior to the Transfer Date or are afforded pension rights which are certified by the Government Actuaries Department [or by a professional qualified actuary] as being broadly comparable to or better than the terms of the pension scheme of which they were, or were eligible to be, members prior to the Transfer Date.
The Contractor shall within 10 working days of receiving a request from the Council, furnish to the Council any information deemed by the Council necessary concerning any measures (within the meaning of the Regulations and the Directive) that the Contractor intends to take in relation to any Relevant Employee and shall indemnify the Council against all losses, costs, claims, demands, actions, fines, penalties, liabilities and expenses (including legal expenses) in relation to any breach of this obligation.
The Contractor shall indemnify the Council from and against all losses, costs, demands, actions, fines, penalties, awards, liabilities and expenses (including legal expenses), which the Council (so far as it is able) shall take all reasonable steps to mitigate, in connection with or as a result of any claim or demand by any Relevant Employee arising out of the employment of or termination of the employment of any Relevant Employee provided that this arises from any act, fault or omission of the Contractor in relation to any Relevant Employee, on or after the date of the Relevant Transfer.
The Contractor shall indemnify and hold harmless the Council from and against all losses, costs, claims, demands, actions, fines, penalties, awards, liabilities and expenses (including legal expenses) which the Council (so far as it is able) shall take all reasonable steps to mitigate, in connection with or as a result of any claim by any trade union or staff association or employee representative (whether or not recognised by the Contractor in respect of all or any of the Relevant Employees) arising from or connected with any failure by the Contractor to comply with any legal obligation to such trade union, staff association or other employee representative whether under Regulation 10 of the Regulations, under the Directive or otherwise and, whether any such claim arises or has its origin before or after the date of the Relevant Transfer.
The Contractor shall indemnify the Council from and against all losses, costs, claims, demands, actions, fines, penalties, awards, liabilities and expenses (including legal expenses) which the Council (so far as it is able) shall take all reasonable steps to mitigate, in connection with or as a result of any claim by any Relevant Employee that the identity of the Contractor or Sub-Contractor is to that Relevant Employee's detriment or that the terms and conditions to be provided by the Contractor or any Sub-Contractor or any proposed measures of the Contractor or any Sub-Contractor are to that employee's detriment whether such claim arises before or after the Transfer Date.
The Contractor shall indemnify the Council and any new contractor appointed by the Council and keep the Council and any new contractor appointed by the Council indemnified in full from and against all direct, indirect or consequential liability, loss, damages, injury, claims, costs and expenses (including legal expenses) which the Council (so far as it is able) and any new contractor appointed by the Council shall take all reasonable steps to mitigate, awarded against or incurred or paid by the Council or any new contractor appointed by the Council as a result of or in connection with the employment or termination of employment of any employee of the Contractor during any period prior to the date of expiry or sooner termination of the Contract.
The Council and the Contractor shall have regard to the Code in interpreting and applying the Code Obligations.
Subject to Clause 42.12, the Contractor shall employ New Employees on terms and conditions of employment which are, overall no less favourable than those of the Transferring Employees engaged in the provision of the Services and holding the same or a similar position to that of the New Employees.
The Contractor shall consult with the recognised trade unions and where there is no recognised trade union any other employee representative body on the terms to be offered to the New Employees pursuant to Clause 42.10.
In addition to its obligations under Clause 42.10 above, the Contractor shall procure that the New Employees are offered either:
membership of the Local Government Pension Scheme where the employer has admitted body status within the scheme and makes the requisite contribution; or
membership of a good quality employer pension scheme, being a contracted-out final salary based defined benefit scheme, or a defined contribution scheme under which the employer must match employee contributions up to 6 per cent; or
a stakeholder pension scheme, under which the employer matches employee contributions up to 6 per cent.
During the term of the Contract, the Contractor shall on request by the Council provide the Council with accurate and complete information as soon as reasonably practicable, including the terms and conditions of employment of the Transferring Employees and the New Employees, where this is required to monitor the Contractor's compliance with its Code Obligations.
The Contractor shall support any central Government sponsored review and monitoring programme on the impact of the Code and on request by the Council provide the Council with accurate and complete information as soon as reasonably practicable in order to assist the Council in doing this.
The Council and the Contractor shall in the first instance seek to resolve by discussions between them any complaints from any employee or any recognised trade union in relation to compliance by the Contractor with its Code Obligations.
Where it appears to the Council or the Contractor that it is not possible to resolve the matter by continuing discussions between them pursuant to Clause 42.15 or where an employee of the Contractor or any recognised trade union writes to the Council to confirm that it has been unable to resolve its complaint directly with the Contractor in relation to the Contractor's Code Obligations, the Council shall first write to the Contractor to seek an explanation for the alleged failure by the Contractor to comply with its Code Obligations. The Contractor shall provide such an explanation in writing within 5 working days of receipt of the request from the Council.
If the response provided by the Contractor satisfies the Council that the Code Obligations have been met, then the Council will inform the complainant of this and the matter will be deemed to have been concluded.
In the event that the Council is not satisfied with the response provided by the Contractor the Council shall write to the Contractor within 5 working days to require the Contractor to take immediate action to resolve this dispute.
If, following such a request by the Council the Contractor still appears to the Council not to be complying with its Code Obligations, the matter shall be dealt with in accordance with Clause 26 (Alternative Dispute Resolution).
During the 12 months preceding the expiry of the Contract or after the Council has given notice to terminate the Contract or at any other time as directed by the Council, and within 15 working days of being so requested by the Council, the Contractor shall fully and accurately disclose to the Council any and all information in relation to all personnel engaged in providing the Services including all Relevant Employees who are to transfer as a consequence of a Relevant Transfer as the Council may request, in particular but not necessarily restricted to any of the following:
a list of employees employed by the Contractor;
a list of agency workers, agents and independent contractors engaged by the Contractor;
the total payroll bill (i.e. total taxable pay and allowances including employer's contributions to pension schemes) of those personnel; and
the terms and conditions of employment of the Relevant Employees, their age, salary, date continuous employment commenced and (if different) the commencement date, enhancement rates, any other factors affecting their redundancy entitlement and any outstanding claims arising from employment.
The Contractor shall warrant the accuracy of all the information provided to the Council pursuant to Clause 42.20 and authorises the Council to use any and all the information as it may consider necessary for the purposes of its business or for informing any tenderer or prospective tenderer for any services which are substantially the same as the Services (or any part thereof).
During the 12 months preceding the expiry of this Contract or where notice to terminate the Contract for whatever reason has been given, the Contractor shall allow the Council or such other persons as may be authorised by the Council to communicate with and meet the Relevant Employees and their trade union or employee representatives as the Council may reasonably request.
During the 12 months preceding the expiry of this Contract or where notice to terminate the Contract for whatever reason has been given, the Contractor shall not without the prior written consent of the Council unless bona fide in the ordinary course of business:
vary or purport or promise to vary the terms and conditions of employment of any employee employed in connection with the Services;
materially increase or decrease the number of employees employed in connection with the Services; or
assign or redeploy any employee employed in connection with the Services to other duties unconnected with the Services.
In the event that the Contractor enters into any sub-contract in connection with this Contract, it shall impose obligations as contained within the contract upon its Sub-Contractor in the same terms as those imposed on it pursuant to this Clause 42 and shall procure that the Sub-Contractor complies with such terms. The Contractor shall indemnify the Council and keep the Council indemnified in full from and against all direct, indirect or consequential liability, loss, damages, injury, claims, costs and expenses (including legal expenses) awarded against or incurred or paid by the Council as a result of or in connection with any failure on the part of the Sub-Contractor to comply with such terms.
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Procurement
E-mail: contracts@thanet.gov.uk
Tel: 01843 577111