The National Health Service Trust Development Authority (Establishment and Constitution) Order 2012

Citation, commencement and interpretation1.

(1)

This Order may be cited as the National Health Service Trust Development Authority (Establishment and Constitution) Order 2012 and comes into force on 1st June 2012.

(2)

In this Order—

F1“the 1996 Act” means the Employment Rights Act 1996;

“the Act” means the National Health Service Act 2006;

“the Authority” means the National Health Service Trust Development Authority established by article 2 of this Order;

F2“the Board” means the National Health Service Commissioning Board;

“the Commission” means the Appointments Commission established by section 57 of the Health Act 20062;

F3“employing authority” means the Secretary of State, a Strategic Health Authority, a Primary Care Trust or the NHS Institute;

“English NHS trust” means an NHS trust all or most of whose hospitals, facilities and establishments are situated in England;

F3“NHS Institute” means the National Institute for Improvement and Innovation established as a special health authority by the NHS Institute for Innovation and Improvement (Establishment and Constitution) Order 2005;

F3“second transfer date” means 1st April 2013;

“special trustees” has the meaning given in section 212(1) of the Act;

F2“third transfer date” means 1st April 2016;

“transfer date” means 1st October 2012.

F2“the Trust” means the Imperial College Healthcare National Health Service Trust;

Establishment of the Authority2.

There is established a Special Health Authority which is to be known as the National Health Service Trust Development Authority.

Functions of the Authority3.

(1)

The Authority is to exercise—

(a)

such functions in connection with—

(i)

the management of the performance of English NHS trusts;

(ii)

supporting improvements in clinical quality, governance and management of risk in English NHS trusts; and

(iii)

the development of the performance of English NHS trusts with the objective of assisting them to become sustainable organisations;

(b)

such functions in connection with the appointment of—

(i)

the chair and non-executive directors of English NHS trusts;

(ii)

special trustees;

(iii)

trustees for F4... English NHS trusts4, NHS foundation trusts5 F5and Special Health Authorities; and

(c)

such other functions;

as the Secretary of State may direct8.

(2)

The Authority must exercise those functions subject to, and in accordance with, any directions given to it by the Secretary of State9.

F6Constitution of the Authority4.

(1)

The Authority is to consist of–

(a)

a chairman;

(b)

at least 5 members who are not officers of the Authority in addition to the chairman; and

(c)

subject to paragraph (2), a number of other members who are officers of the Authority including the person who for the time being holds the office of chief executive.

(2)

The number of officer members must be less than the number of non-officer members.

Transfer of property5.

(1)

The property of the Commission identified as property to transfer to the Authority in the document entitled “The National Health Service Trust Development Authority Property Schedule 2012” and signed by the Commission on 5th March 2012 is to be transferred to the Authority on the transfer date.

(2)

All liabilities of the Commission relating to the property listed in the National Health Service Trust Development Authority Property Schedule 2012 are to be transferred to the Authority on the transfer date.

(3)

Any right relating to the property listed in the National Health Service Trust Development Authority Property Schedule 2012 that was immediately before the transfer date enforceable by or against the Commission is, on or after the transfer date, to be enforceable by or against the Authority.

F75A.

(1)

The property of the Secretary of State identified as property to transfer to the Authority in the document entitled “The Department of Health Property to Transfer to the National Health Service Trust Development Authority Schedule 20135” and signed on behalf of the Department of Health on 5th February 2013, and on behalf of the Authority on 6th February 2013, is to be transferred to the Authority on the second transfer date.

(2)

All liabilities of the Secretary of State relating to the property referred to in paragraph (1) are to be transferred to the Authority on the second transfer date.

(3)

Any right relating to the property of the Secretary of State referred to in paragraph (1) that was immediately before the second transfer date enforceable by or against the Secretary of State is, on or after the second transfer date, to be enforceable by or against the Authority.

F8Transfer of property and liabilities from the Board5B.

(1)

The property of the Board identified as property to transfer to the Authority in the document entitled “The National Health Service Commissioning Board transfer to the National Health Service Trust Development Authority Agreement 2016 in connection with the exercise of safety functions” and signed on behalf of the Board and the Authority on 19th February 2016, is to be transferred to the Authority on the third transfer date.

(2)

All liabilities (actual or contingent) of the Board relating to–

(a)

the property referred to in paragraph (1); and

(b)

the functions that the Authority is directed to exercise in accordance with regulation 2 (directions to the Authority relating to the Board’s safety of services functions) of the National Health Service Trust Development Authority (Directions and Miscellaneous Amendments etc.) Regulations 2016 (“the 2016 Regulations”),

are to be transferred to the Authority on the third transfer date.

(3)

Any right relating to–

(a)

the property referred to in paragraph (1); and

(b)

the functions that the Authority is directed to exercise in accordance with regulation 2 of the 2016 Regulations,

that was immediately before the third transfer date enforceable by or against the Board is, on or after the third transfer date, to be enforceable by or against the Authority.

Transfer of staff6.

(1)

This paragraph applies in relation to any person who—

(a)

immediately before the transfer date is employed by the Commission and is engaged wholly or mainly in the performance of the functions of making appointments of chairs and non-executive members of English NHS trusts, trustees for English NHS trusts, Primary Care Trusts and NHS foundation trusts, and special trustees; and

(b)

has, before the transfer date, been notified in writing by the Commission that they are to be transferred to the Authority on that date.

(2)

Any person to whom paragraph (1) applies is, on the transfer date, to be transferred to the employment of the Authority.

(3)

The contract of employment of a person whose employment has transferred to the Authority under paragraph (2)—

(a)

is not terminated by the transfer, and

(b)

has effect from the transfer date as if originally made between that person and the Authority.

(4)

Without prejudice to paragraph (3)—

(a)

all the rights, powers, duties and liabilities of the Commission, under or in connection with its contract of employment with a person transferred under paragraph (2), are to transfer to the Authority on the transfer date; and

(b)

any act or omission before the transfer date of or in relation to the Commission, in respect of that person or that person’s contract of employment, is deemed to have been an act or omission of or in relation to the Authority.

(5)

Paragraphs (2) to (4) do not operate to transfer the contract of employment of a person to whom paragraph (1) applies, or any rights, powers, duties and liabilities under, or in connection with, that contract, if, before the transfer date, that person informs the Authority or the Commission that they object to becoming employed by the Authority.

(6)

Where a person to whom paragraph (1) applies has objected to the transfer of that person’s contract of employment to the Authority as described in paragraph (5), the transfer operates so as to terminate that person’s contract of employment with the Commission.

(7)

Subject to paragraph (8), a person whose contract of employment is terminated in accordance with paragraph (6) is not to be treated, for any purpose, as having been dismissed by the Commission.

(8)

Where the transfer involves or would involve a substantial change in the working conditions to the material detriment of a person whose employment is or would have transferred under paragraph (1), that person may treat the contract of employment as having been terminated, and that person shall be treated for any purpose as having been dismissed by the employer.

(9)

No damages shall be payable by an employer as a result of a dismissal falling within paragraph (8) in respect of any failure by the employer to pay wages to a person in respect of a notice period which the person has failed to work.

(10)

Paragraphs (2), (3) and (5) to (8) are without prejudice to any right of a person arising apart from this article to terminate that person’s contract of employment without notice in acceptance of a repudiatory breach of contract by the employer.

F96A.

(1)

This paragraph applies in relation to any person who—

(a)

immediately before the second transfer date, is employed by an employing authority; and

(b)

has, before the second transfer date, been notified in writing by the employing authority that employs that person that they are to be transferred to the Authority on the second transfer date.

(2)

Any person to whom paragraph (1) applies is, on the second transfer date, to be transferred to the employment of the Authority.

(3)

The contract of employment of a person whose employment has transferred to the Authority under paragraph (2)—

(a)

is not terminated by the transfer; and

(b)

has effect from the second transfer date as if originally made between that person and the Authority.

(4)

Without prejudice to paragraph (3)—

(a)

all the rights, powers, duties and liabilities of the employing authority under, or in connection with, the contract of employment of any person whose employment has transferred to the Authority on the second transfer date under paragraph (2), are to transfer to the Authority on the second transfer date; and

(b)

any act or omission before the second transfer date of or in relation to the employing authority, in respect of that person or that person’s contract of employment, is deemed to have been an act or omission of or in relation to the Authority.

(5)

Paragraphs (2) to (4) do not operate to transfer the contract of employment of a person to whom paragraph (1) applies, or any rights, powers, duties and liabilities under, or in connection with, that contract, if, before the second transfer date, that person informs the Authority or the employing authority that they object to becoming employed by the Authority.

(6)

Where a person to whom paragraph (1) applies has objected to the transfer of that person’s contract of employment to the Authority as described in paragraph (5), the transfer operates so as to terminate that person’s contract of employment with the employing authority.

(7)

Subject to paragraph (8), a person whose contract of employment is terminated in accordance with paragraph (6) is not to be treated, for any purpose, as having been dismissed by the employing authority.

(8)

Where the transfer involves or would involve a substantial change in the working conditions to the material detriment of a person whose employment is or would have transferred under paragraph (1), that person may treat the contract of employment as having been terminated, and that person shall be treated for any purpose as having been dismissed by the employer.

(9)

No damages shall be payable by an employer as a result of a dismissal falling within paragraph (8) in respect of any failure by the employer to pay wages to a person in respect of a notice period which the person has failed to work.

(10)

Paragraphs (2), (3) and (5) to (8) are without prejudice to any right of a person arising apart from this article to terminate that person’s contract of employment without notice in acceptance of a repudiatory breach of contract by the employer.

F9Dismissal of employee because of transfer6B

(1)

Where a person whose employment has been transferred by article 6A is dismissed by the Authority during the period starting with the second transfer date and ending on 31st March 2015, that person is to be treated for the purposes of Part 10 of the 1996 Act (unfair dismissal) as having been unfairly dismissed if the sole or principal reason for the dismissal is—

(a)

the transfer itself; or

(b)

a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.

(2)

This paragraph applies where the sole or principal reason for the dismissal is a reason connected with the transfer that is an economic, technical or organisational reason entailing changes in the workforce of the Authority after the second transfer date.

(3)

Where paragraph (2) applies—

(a)

paragraph (1) does not apply;

(b)

without prejudice to section 98(4) of the 1996 Act (test of fair dismissal), the dismissal shall, for the purposes of sections 98(1) and 135 of that Act (reason for dismissal), be regarded as having been for redundancy where section 98(2)(c) of that Act applies, or otherwise for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

(4)

Paragraph (1) does not apply in relation to a dismissal of an employee if the application of section 94 of the 1996 Act (the right) to the dismissal of the employee is excluded by or under any provisions of the 1996 Act, the Employment Tribunals Act 19966 or the Trade Union and Labour Relations (Consolidation) Act 19927.

(5)

Paragraph (1) does not prevent the Authority and a person whose contract of employment has been transferred by virtue of article 6A from agreeing a variation of that contract for a reason specified in that paragraph.

F10Transfer of Staff6C.

(1)

This paragraph applies in relation to any person who–

(a)

immediately before the third transfer date is employed by the Board or by the Trust; and

(b)

has, before the third transfer date, been notified in writing by the Board or by the Trust that they are to be transferred to the Authority on that date.

(2)

Any person to whom paragraph (1) applies is, on the third transfer date, to be transferred to the employment of the Authority.

(3)

The contract of employment of a person whose employment has transferred to the Authority under paragraph (2)–

(a)

is not terminated by the transfer; and

(b)

has effect from the third transfer date as if originally made between that person and the Authority.

(4)

Without prejudice to paragraph (3)–

(a)

all the rights, powers, duties and liabilities of the Board or the Trust, as the case may be, under, or in connection with, its contract of employment with a person transferred under paragraph (2) are to transfer to the Authority on the third transfer date; and

(b)

any act or omission before the third transfer date of, or in relation to, the Board or Trust, as the case may be, in respect of that person or that person’s contract of employment, is deemed to have been an act or omission of, or in relation to, the Authority.

(5)

Paragraphs (2) to (4) do not operate to transfer the contract of employment of a person to whom paragraph (1) applies or any rights, powers, duties and liabilities under, or in connection with, that contract if, before the third transfer date, that person informs whichever of the Board or the Trust employs them or the Authority that they object to becoming employed by the Authority.

(6)

Where a person to whom paragraph (1) applies has objected to the transfer of that person’s contract of employment to the Authority as described in paragraph (5), the transfer operates so as to terminate that person’s contract of employment with the Board or, as the case may be, the Trust.

(7)

Subject to paragraph (8), a person whose contract of employment is terminated in accordance with paragraph (6) is not to be treated, for any purpose, as having been dismissed by the Board or, as the case may be, the Trust.

(8)

Where the transfer involves or would involve a substantial change in the working conditions to the material detriment of a person whose employment is or would have been transferred under paragraph (2), that person may treat the contract of employment as having been terminated, and that person shall be treated for any purpose as having been dismissed by the employer.

(9)

No damages shall be payable by an employer as a result of a dismissal falling within paragraph (8) in respect of any failure by the employer to pay wages to a person in respect of a notice period which the person has failed to work.

(10)

Paragraphs (2), (3) and (5) to (8) are without prejudice to any right of a person arising apart from this article to terminate that person’s contract of employment without notice in acceptance of a repudiatory breach of contract by the employer.

Public meetings7.

The Public Bodies (Admission to Meetings) Act 196010 is to apply to the Authority.