39. Contractor's Obligations in Connection with TUPE
39.1
Where Services are delivered under the Contract then this Condition 39 applies under the Contract.
39.2
Both Parties recognise that the Transfer of Undertakings (Protection of Employment) Regulations 2006 and/ or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (‘TUPE’) apply in respect of this Contract. For the purposes of those Regulations, the undertaking concerned (or any relevant part of the undertaking) shall transfer to the Contractor on the commencement of the Contract.
39.3
During either:
39.3.1 the period of six months preceding the expiry of the Contract Period; or within 20 days of the Contract being terminated for any reason; or within 10 working days of receiving a written request from the Council
the Contractor shall upon request, fully and accurately disclose to the Council, for the purposes of TUPE, all information relating to its employees engaged in providing Services under the Contract the following information (this list is non exhaustive):-
39.3.1.1 the total number of personnel whose employment with the Contractor is liable to be terminated at the expiry of this Contract but for any operation of law; and
39.3.1.2 for each person, details of their age, gender, salary and pay settlements covering that person which relate to future dates but which have already been agreed and their redundancy entitlements; and
39.3.1.3 information about the other terms and conditions on which the affected staff are employed, or about where that information can be found;
39.3.1.4 information about any disciplinary procedures taken against any employee; and
39.3.1.5 information about any grievance procedure taken by an employee; and
39.3.1.6 information of any court or tribunal case, claim or action brought by or taken against an employee in the previous 2 years; and information of any court or tribunal case, claim or action which the Contractor has reasonable grounds to believe an employee may bring.
39.4
The Contractor shall permit the Council to use the information received for the purposes of TUPE and of re-tendering. The Contractor will co-operate with the re-tendering of the contract by allowing the transferee to communicate with and meet the affected employees and/ or their representatives.
39.5
The Contractor agrees to indemnify the Council fully and to hold it harmless at all times from and against all actions, proceedings, claims, expenses, awards, costs and all other liabilities whatsoever in any way connected with or arising from or relating to the provision of information under Condition 39.2.
39.6
In the event that the information provided by the Contractor in accordance with Condition 39.2 becomes inaccurate, whether due to changes to the employment and personnel details of affected employees made subsequent to the original provision of such information or by reason of the Contractor becoming aware that the information originally given was inaccurate, the Contractor shall notify the Council of the inaccuracies and provide the amended information.
39.7
During the eight-month period preceding the expiry of this Contract or within any period of notice of Termination or notice of Break, the Contractor shall not without the prior written agreement of the Council, which shall not be unreasonably withheld or delayed:-
39.7.1 materially amend the terms and conditions of employment of any employee whose work, wholly or mainly falls within the scope of this Contract, for the avoidance of doubt this shall include any increase in the annual renumeration of individuals engaged in the provision of the Service other than in the ordinary course of business; or
39.7.2 recruit or allow to be recruited a replacement for any employee on terms and conditions of employment which differ materially from those of the individual being replaced by such replacement.
39.7.3 materially increase or decrease the number of employees whose work (or any part of it) is work undertaken for the purposes of this Contract.
39.7.4 change or allow to be changed the identity of the employees assigned to the provision of the Services by transferring of allowing to be transferred any employee to or from the provision of the Services or replacing or allowing to be replaced any employee engaged in the provision of the Services even if this does not increase the overall number of employees.
39.8
Except where the Contractor is required to do so by law or by force of Contract whereupon the Contractor shall promptly notify the Council in writing of the terms of such legal or contractual requirement and shall obtain the written consent of the Council (which shall not be unreasonably withheld) to any such variation or proposed increase/decrease or change.
39.9
The Contractor shall not knowingly do or omit to do anything which may adversely affect an orderly transfer of responsibility for provision of the Services.
39.10
The provisions of this Condition 39 shall apply during the continuance of this contract and indefinitely after its termination.
