The NHS Counter Fraud Authority (Establishment, Constitution, and Staff and Other Transfer Provisions) Order 2017

Article 13

SCHEDULE 3 Abolition of the Authority

Abolition of the Authority and Interpretation of this Schedule

1.—(1) The Authority is to be abolished on the abolition date.

(2) In this Schedule, except in sub-paragraph (3), “liabilities” do not include criminal liabilities.

(3) This Schedule does not apply to transfer, or provide for continuity in relation to, criminal liabilities of the Authority or proceedings arising from such liabilities.

Provision for the transfer of officers upon abolition of the Authority

2.—(1) This paragraph applies to any person who immediately before the abolition date is employed by the Authority.

(2) Any person to whom sub-paragraph (1) applies is, on the abolition date, transferred to the employment of the Secretary of State.

(3) The contract of employment of a person whose employment transfers to the Secretary of State under sub-paragraph (2)—

(a) is not terminated by the transfer; and

(b) has effect from the abolition date as if originally made between that person and the Secretary of State.

(4) Without prejudice to sub-paragraph (3)—

(a) all the rights, powers, duties and liabilities of the Authority under, or in connection with, the contract of employment of any person whose employment transfers under paragraph (2), are to transfer to the Secretary of State on the abolition date; and

(b) any act or omission before the abolition date of or in relation to the 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 Secretary of State.

(5) Sub-paragraphs (2) to (4) do not operate to transfer the contract of employment of a person to whom sub-paragraph (1) applies, or any rights, powers, duties and liabilities under, or in connection with that contract, if, before the abolition date, that person informs the Authority or the Secretary of State that the person objects to becoming employed by the Secretary of State.

(6) Where a person to whom sub-paragraph (1) applies has objected to the transfer of that person’s contract of employment to the Secretary of State as described in sub-paragraph (5), this paragraph operates so as to terminate that person’s contract of employment with the Authority on the abolition date.

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

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

(9) No damages are to be payable by an employer as a result of a dismissal falling within sub-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) Sub-paragraphs (2), (3) and (5) to (8) are without prejudice to any right of a person arising apart from this Schedule to terminate that person’s contract of employment without notice in acceptance of a repudiatory breach of contract by the employer.

(11) Subject to sub-paragraphs (12) and (14), any purported variation of a contract of employment to which this paragraph applies is void if the sole or principal reason for the variation of that contract is the transfer.

(12) Sub-paragraph (11) does not prevent a variation of the contract if—

(a) the sole or principal reason for the variation is an economic, technical, or organisational reason entailing changes in the workforce, provided that the employer and employee agree that variation; or

(b) the terms of that contract of employment permit the employer to make such a variation.

(13) Where a contract of employment, which is transferred by sub-paragraph (2), incorporates provisions of collective agreements as may be agreed from time to time, sub-paragraph (4) does not transfer any rights, powers, duties and liabilities in relation to any provision of a collective agreement if the following conditions are met—

(a) the provision of the collective agreement is agreed after the date of the transfer; and

(b) the Secretary of State is not a participant in the collective bargaining for that provision.

(14) Sub-paragraph (11) does not apply in respect of a variation of the contract of employment in so far as it varies a term or condition incorporated from a collective agreement, provided that—

(a) the variation of the contract takes effect on a date more than one year after the date of the transfer; and

(b) following that variation, the rights and obligations in the employee’s contract, when considered together, are no less favourable to the employee than those which applied immediately before the variation.

(15) Records of the Authority relating to the employment of its officers whose contracts of employment are to transfer to the Secretary of State pursuant to article 13 and this Schedule are to transfer to the Secretary of State on the transfer date.

(16) The following provisions apply only for purposes of giving effect to a transfer under sub-paragraph (2), as read with sub-paragraphs (3) and (4), and are subject to sub-paragraphs (5) to (14), and paragraphs 3 and 4—

(a) anything (including legal proceedings) which, immediately before the transfer date, is in the process of being done by, or in relation to, the Authority in connection with the employment of persons whose employment transfers under sub-paragraph (2) is deemed to have effect as if done by, or in relation to, the Secretary of State, and may be continued by, or in relation to, the Secretary of State;

(b) any instrument made by, or in relation to, the Authority in connection with the employment of persons whose employment transfers under sub-paragraph (2) continues in force until it is varied or revoked by the Secretary of State;

(c) any form supplied by the Authority in connection with the employment of persons whose employment transfers under sub-paragraph (2) continues to be valid until it is varied or revoked by the Secretary of State and as if any reference in that form to the Authority (in respect of that employment) were a reference to the Secretary of State;

(d) any reference to the Authority in any contract, arrangement, agreement, instrument or other document in connection with the employment of persons whose employment transfers under sub-paragraph (2) is to be treated as a reference to the Secretary of State.

Dismissal of employee because of transfer

3.—(1) Where a person whose contract of employment is transferred by this Schedule is dismissed by the Secretary of State, that person is to be treated, for the purposes of Part 10 of the Employment Rights Act 1996(1) (unfair dismissal) as having been unfairly dismissed if the sole or principal reason for the dismissal is the transfer itself.

(2) This sub-paragraph applies where the sole or principal reason for a person’s dismissal is an economic, technical or organisational reason entailing changes in the workforce of the Secretary of State after the transfer.

(3) Where sub-paragraph (2) applies, sub-paragraph (1) does not apply and, without prejudice to section 98(4) of the Employment Rights Act 1996 (test of fair dismissal)(2), for the purposes of sections 98(1) (reason for dismissal) and 135 (the right to a redundancy payment) of that Act—

(a) the dismissal is to be regarded as having been for redundancy where section 98(2)(c) of that Act applies; or

(b) in any other case, the dismissal is to be regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position that the employee held.

(4) Sub-paragraph (1) does not apply in relation to a dismissal of an employee if the application of section 94 of the Employment Rights Act 1996 (right not to be unfairly dismissed) to that dismissal is excluded by or under any provision of that Act, the Employment Tribunals Act 1996(3) or the Trade Union and Labour Relations (Consolidation) Act 1992(4).

Pensions

4.—(1) Paragraph 2(1) to (4) does not apply—

(a) to so much of a person’s contract of employment or collective agreement as relates to an occupational pension scheme within the meaning of section 1(1) of the Pension Schemes Act 1993 (categories of pension schemes)(5); and

(b) to any rights, powers, duties or liabilities under or in connection with any such contract or subsisting by virtue of any such agreement and relating to such a scheme or otherwise arising in connection with that person’s employment and relating to such a scheme.

(2) For the purposes of sub-paragraphs (1) and (3), any provisions of an occupational pension scheme which do not relate to benefits for old age, invalidity or survivors are not to be treated as part of that scheme.

(3) Any person whose contract of employment is transferred by paragraph 2 is not entitled to bring a claim against the Authority for—

(a) breach of contract; or

(b) constructive unfair dismissal by virtue of section 95(1)(c) of the Employment Rights Act 1996 (circumstances in which an employee is dismissed)(6),

arising out of a loss or reduction in rights under an occupational pension scheme in consequence of the transfer, save insofar as the alleged breach of contract or dismissal (as the case may be) occurred prior to the transfer.

Provisions for the transfer of property and liabilities upon abolition of the Authority

5.—(1) Any property of the Authority held immediately before the abolition date is to be transferred to the Secretary of State on the abolition date.

(2) Any liability (actual or contingent) of the Authority relating to—

(a) the property referred to in sub-paragraph (1);

(b) any employment contract entered into by the Authority that ended before the abolition date; and

(c) the functions that the Authority exercises in accordance with article 4,

that was immediately before the abolition date enforceable by or in relation to the Authority is to be transferred to the Secretary of State on that date.

(3) Any right relating to—

(a) the property referred to in sub-paragraph (1);

(b) any employment contract entered into by the Authority that ended before the abolition date; and

(c) the functions that the Authority exercises in accordance with article 4,

that was immediately before the abolition date enforceable by or against the Authority is, on or after the abolition date, to be enforceable by or against the Secretary of State.

(4) In this paragraph, “property” includes a contract, agreement or other arrangement, intellectual property and records generated in the conduct of the Authority’s functions, and a licence to occupy premises.

Continuity and supplementary provisions

6.—(1) Any act or omission of, or in relation to, the Authority before the abolition date in connection with—

(a) the functions that the Authority exercises in accordance with article 4;

(b) any property, rights or liabilities transferred as a consequence of paragraph 5 of this Schedule; or

(c) any contract, arrangement or agreement entered into by the Authority in connection with any property, rights or liabilities transferred as a consequence of paragraph 5 of this Schedule,

are deemed to have been an act or omission of, or in relation to, the Secretary of State.

(2) Anything (including legal proceedings) which, immediately before the abolition date, is in the process of being done by, or in relation to, the Authority in connection with any of the matters mentioned in sub-paragraph (1) is deemed to have effect as if done by, or in relation to, the Secretary of State, and may be continued by, or in relation to, the Secretary of State.

(3) Any instrument made by, or in relation to, the Authority in connection with the matters referred to in sub-paragraph (1) continues in force until it is varied or revoked by the Secretary of State.

(4) Any form supplied by the Authority in connection with the matters referred to in sub-paragraph (1) continues to be valid until it is varied or revoked by the Secretary of State and as if any reference in that form to the Authority were a reference to the Secretary of State.

(5) Any reference to the Authority in any contract, agreement, arrangement, instrument or other document in connection with any property, rights or liabilities transferred as a consequence of paragraph 5 is to be treated as a reference to the Secretary of State.

(6) Where the rights and liabilities under a contract, agreement, arrangement or instrument entered into or agreed by the Authority are transferred as a consequence of paragraph 5, that contract, agreement, arrangement or instrument is to continue to have effect on or after the abolition date as if it were originally entered into by the Secretary of State.

(7) No right to terminate or vary a contract, agreement, arrangement or instrument is to operate or become exercisable, and no provision of any contract, agreement, arrangement or instrument is to operate or become exercisable or be contravened, by reason of the transfer of any property, rights or liabilities as a consequence of paragraph 5.

(1)

1996 c. 18.

(2)

Section 98 was amended by sections 9 and 44 of, paragraphs 5 and 15 of Schedule 4 to, and table 2 of Schedule 9 to, the Employment Relations Act 1999 (c. 26); by section 53 of, and paragraphs 24 and 32 of Schedule 7 to, the Employment Act 2002 (c. 22); by section 57(1) of, and paragraph 30 of Schedule 1 to, the Employment Relations Act 2004 (c. 24); and by SI 2006/1031 and 2011/1069.

(3)

1996 c. 17.

(4)

1992 c. 52.

(5)

1993 c. 48. The definition of “occupational pension scheme” was substituted by section 239(1) and (3) of the Pensions Act 2004 (c. 35).

(6)

Section 95(1) was amended by section 57 of, and paragraph 29 of Schedule 1 to, and Schedule 2 to, the Employment Relations Act 2004.