SCHEDULE 5 Transfers of Staff
Part I Staff Employed at the Tunnel Crossing Before the Transfer Date
Application of Employment Transfer Regulations
1
(1)
For the purposes of the Employment Transfer Regulations section 6 or, where section 7 applies, section 7 of this Act shall be treated (without prejudice to any effect it may have for those purposes apart from this sub-paragraph) as effecting on the transfer date a transfer to which those regulations apply of an undertaking in which all relevant employees of Kent County Council were then employed.
(2)
In their application in relation to any transfer of an undertaking effected, or treated by virtue of sub-paragraph (1) above as effected, by section 6 or 7 of this Act, those regulations shall be subject to the following provisions of this paragraph.
(3)
Subject to sub-paragraph (4) below, where section 7 of this Act applies the transferee for the purposes of those regulations in relation to all relevant employees shall be taken to be the person appointed under section 11 of this Act to levy tolls.
(4)
In relation to any relevant employees who immediately before the transfer date were employed by that Council in activities carried on for the purposes of or in connection with the exercise by the Councils of any function which on that date becomes a function of the Secretary of State, sub-paragraph (3) above shall not apply unless the function in question is subject to an agreement taking effect on that date for the delegation of that function under section 12 of this Act to the person appointed.
(5)
The transferee for the purposes of those regulations shall be taken to be the Secretary of State—
(a)
where section 7 of this Act does not apply; or
(b)
in relation to any relevant employees who by virtue of sub-paragraph (4) above do not fall, following the transfer, to be treated by virtue of regulation 5 of those regulations as employed by the person appointed.
Provision with respect to pensions, etc.
2
(1)
The application to any relevant employee of Kent County Council whose contract of employment is preserved by regulation 5(1) of the Employment Transfer Regulations of new pension terms applied to that employee by the transferee on the transfer of the undertaking shall be regarded as a change in his terms of employment made by the transferee after the transfer (and not as arising by virtue of the transfer).
F1(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
In this paragraph “pension terms” means terms with respect to any matters to which regulations 5 and 6 of the Employment Transfer Regulations are excluded from applying by regulation 7 of those regulations.
Part II Staff Employed by the Person Appointed to Levy Tolls
Application of Employment Transfer Regulations
3
(1)
For the purposes of F2the Transfer of Undertakings (Protection of Employment) Regulations 2006 section 14 of this Act shall be treated (without prejudice to any effect it may have for those purposes apart from this sub-paragraph) as effecting on the termination of the appointment of the person appointed under section 11 of this Act to levy tolls a transfer to which those regulations apply of an undertaking in which all persons who immediately before termination were employees of that person were then employed.
(2)
In their application in relation to any transfer of an undertaking effected, or treated by virtue of sub-paragraph (1) above as effected, by section 14 of this Act, those regulations shall be subject to paragraph 4 below.
Preservation of pensions, etc.
4
F3Regulation 10 of F4the Transfer of Undertakings (Protection of Employment) Regulations 2006 shall not apply—
(a)
in relation to the contract of employment of any person employed in the undertaking; or
(b)
in relation to any collective agreement in its application in relation to any person so employed.
5
(1)
Without prejudice to the operation of those regulations by virtue of paragraph 4 above and to any effect that sections 14 and 15 of this Act may have apart from this paragraph, any rights and liabilities of the person appointed under any agreement or arrangement for the payment of pensions, allowances or gratuities to or in respect of persons who are or have been employed by him are on the termination of his appointment transferred to, and vest in, the Secretary of State by virtue of this paragraph.
(2)
Accordingly—
(a)
references to the person appointed in any such agreement or arrangement, and in any other agreement, deed, bond, instrument or other document whatsoever relating to or affecting any such rights or liabilities, shall be taken after termination as referring to the Secretary of State ; and
(b)
for the purposes of any such agreement or arrangement as it has effect after termination any period of employment with any person which immediately before termination falls to be taken into account for any purposes of that agreement or arrangement shall count as a period of employment with the Secretary of State.
Part III Supplementary
6
(1)
In this Schedule, “the Employment Transfer Regulations” means the M1Transfer of Undertakings (Protection of Employment) Regulations 1981.
(2)
F6(3)
Expressions used in Part 2 of this Schedule to which a meaning is given by the Transfer of Undertakings (Protection of Employment) Regulations 2006 have the same meaning in Part 2 of this Schedule.