Part II Re-organisation of the Railways

Transfer schemes: supplemental provision

93 Assignment of employees to particular parts of undertakings.

(1)

Schemes may be made—

(a)

assigning such qualifying employees, or qualifying employees of such a class or description, as may be specified in the scheme to such part of their employer’s undertaking as may be so specified;

(b)

modifying the terms and conditions of employment of those employees; and

(c)

providing for the payment of compensation to any of those employees by his employer in respect of any overall detriment incurred by the employee in consequence of any modifications made by the scheme to his terms and conditions of employment.

(2)

A scheme shall be made only for the purpose of facilitating, or otherwise in contemplation of, or in connection with,—

(a)

the disposal of the undertaking, or part of the undertaking, of the Board or of a wholly owned subsidiary of the Board;

(b)

the transfer, by virtue of a transfer scheme, of any property, rights or liabilities—

(i)

from the Board or a wholly owned subsidiary of the Board to any such subsidiary or to a publicly owned railway company or a company wholly owned by the Franchising Director; or

(ii)

from a company wholly owned by the Franchising Director to another such company;

(c)

the provision of railway passenger services, or the operation of additional railway assets, under a franchise agreement, in circumstances where a previous franchise agreement relating to the provision of those services or the operation of those assets comes, or has come, to an end;

(d)

the performance of any duty imposed on the Franchising Director by any provision of Part I above to secure—

(i)

the provision of any railway passenger services;

(ii)

the operation of any network or part of a network;

(iii)

the operation of any station or light maintenance depot, or any part of a station or light maintenance depot; or

(e)

the exercise of the power conferred on the Franchising Director by section 30 above to secure the operation of any additional railway assets.

(3)

The power to make a scheme shall be exercisable—

(a)

by the Board, in respect of employees of the Board or of any wholly owned subsidiary of the Board; or

(b)

by the Franchising Director, in respect of employees of any company which is wholly owned by the Franchising Director.

(4)

Where a scheme modifies the terms and conditions of employment of any person, the person’s terms and conditions of employment after the modification takes effect must overall, and taking account of the amount or value of any compensation payable to him by virtue of subsection (1)(c) above in respect of any such detriment as is there mentioned, be no less favourable to him than his terms and conditions of employment before the modification takes effect.

(5)

The duty imposed on an employer by section 4 of F1the Employment Rights Act 1996 (requirement for written statement in respect of certain changes relating to an employee’s employment) shall extend to all of the modifications made by a scheme to a qualifying employee’s terms and conditions of employment, as if those modifications were changes required to be dealt with in a written statement under that section.

(6)

If any qualifying employee whose terms and conditions of employment are modified by a scheme is aggrieved—

(a)

at the provisions made by the scheme with respect to the payment of compensation, so far as applicable in his case, or

(b)

at the fact that the scheme does not make any such provision,

he may make a written complaint to the maker of the scheme not later than twelve weeks after the date of issue of the written statement required by section 4 of F1the Employment Rights Act 1996in consequence of the modifications made by the scheme in the qualifying employee’s terms and conditions of employment.

(7)

Any complaint under subsection (6) above shall be referred to, and determined by, such arbitrator as may be agreed by the qualifying employee and the person to whom the complaint was made or, at the request of either of them, by a panel of three arbitrators appointed by the Secretary of State and consisting of—

(a)

a person who appears to the Secretary of State to be representative of employers in the railway industry;

(b)

a person who appears to the Secretary of State to be representative of employees in the railway industry; and

(c)

an independent chairman.

(8)

A scheme may make such incidental, consequential, supplemental or transitional provision as appears necessary or expedient to the person making the scheme.

(9)

A scheme may make different provision for different qualifying employees or for qualifying employees of different classes or descriptions.

(10)

A scheme shall not come into force unless it has been approved by the Secretary of State or until such date as the Secretary of State may, after consultation with the maker of the scheme, specify for the purpose in giving his approval.

(11)

In the application of this section in relation to Scotland, any reference to an arbitrator shall be taken as a reference to an arbiter.

(12)

In the application of this section to Northern Ireland, for any reference to section 4 of F1the Employment Rights Act 1996there shall be substituted a reference to section 4(4) to (6B) of the M1Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965.

(13)

In this section—

“qualifying employee”, in the case of any scheme, means a person who, immediately before the coming into force of that scheme—

(a)

is an employee of—

(b)

the Board;

(c)

a wholly owned subsidiary of the Board; or

(d)

a company which is wholly owned by the Franchising Director; and

(e)

is not assigned solely to duties in that part of his employer’s undertaking to which he is, or is to be, assigned by that scheme;

“scheme” means a scheme under this section;

and expressions used in this section and in Part I above have the same meaning in this section as they have in that Part.