Schedule Part 14 - Tupe

PRE-SERVICE TRANSFER OBLIGATIONS
- CFL agrees that, subject to compliance with Data Protection Law:
  - within twenty (20) Business Days of the earliest of:
  - receipt of a notification from the Scottish Ministers of a Service Transfer or intended Service Transfer; or
  - receipt of the giving of notice of early termination of the Agreement or any part thereof; or
  - the date which is twelve (12) months before the Expiry Date; or
  - receipt of a written request of the Scottish Ministers at any time,

it shall provide the Provisional Staff List, together with Staffing Information in relation to such persons, to the Scottish Ministers (or, at the direction of the Scottish Ministers, to an actual or prospective Incoming Operator or prospective tenderer for a New Contract) and it will provide an updated Provisional Staff List at such intervals as are reasonably requested by the Scottish Ministers;

at least twenty (20) Business Days prior to the Service Transfer Date, CFL shall provide to the Scottish Ministers and to any Incoming Operator a final list of Transferring Employees which shall transfer under Employment Regulations (the Final Staff List); and
the Scottish Ministers shall be permitted to use and disclose information provided by CFL under this paragraph for informing any tenderer or other prospective Incoming Operator.

The Final Staff List will identify which of the employees are Transferring Employees. The provision of personal data regarding those individuals detailed on the Final Staff List is subject to the consent of such individuals (which CFL will use its reasonable endeavours to obtain) and being mindful that the Final Staff List can change up to the date of transfer, or in the absence of such individual's approval, the Final Staff List being suitably anonymised so as to comply with Data Protection Law.
CFL warrants, for the benefit of the Scottish Ministers and any Incoming Operator, that the information provided under paragraphs 1.1 and 1.2 of this Schedule Part 14 shall be true and accurate in all material respects.
From the date of the earliest event referred to in paragraph 1.1, CFL agrees and shall procure that its Associated Companies and subcontractors agree, for the benefit of the Scottish Ministers and any Incoming Operator, that they shall not, other than in the ordinary course of business, in respect of those employees engaged in the provision of the Services:
- replace or re-deploy any such employee other than where any replacement is of equivalent grade, skills, experience and expertise;
- make, promise, propose or permit any changes to their terms and conditions of employment (including any payments connected with the termination of employment);
- increase the proportion of working time spent on the Services (or the relevant part thereof) by any of the employees save for fulfilling assignments and projects previously scheduled and agreed;
- introduce any new contractual or customary practice concerning the making of any lump sum payment on the termination of employment of any employees listed on the Provisional Staff List; and
- increase or reduce the total number of employees so engaged, replace any employee listed on the Provisional Staff List or deploy any other person to perform the Services (or the relevant part thereof) or terminate or give notice to terminate the employment or contracts of any persons on the Provisional Staff List save for:
  - the execution of assigned operations as detailed in 1.4.3; and/or
  - replacing voluntary resignations or employees terminated by due disciplinary process to satisfy the fulfilment of previously agreed work streams provided that any replacement is employed on the same terms and conditions of employment as the person he/she replaces.
- CFL will promptly notify the Scottish Ministers or, at the direction of the Scottish Ministers, the Incoming Operator, of any notice to terminate employment given by CFL (or any Associated Company or subcontractor) or received from any persons listed on the Provisional Staff List regardless of when such notice takes effect.
- During the Grant Period, CFL will provide to the Scottish Ministers any information the Scottish Ministers may reasonably require relating to any individual employed, assigned or engaged in providing the Services (subject to any limitations imposed by Data Protection Law) including without limitation the Staffing Information and, upon reasonable request by the Scottish Ministers and subject only to any limitation imposed by Data Protection Law, CFL will provide the Scottish Ministers or at the request of the Scottish Ministers, the Incoming Operator, with access (on reasonable notice and during normal working hours) to such employment records as the Scottish Ministers reasonably requests and will allow the Scottish Ministers or any Incoming Operator to have copies of any such documents.
- Within seven (7) Business Days following the Service Transfer Date, CFL will provide to the Scottish Ministers or any Incoming Operator, in respect of each person on the Final Staff List who is a Transferring Employee:
  - the most recent month's copy pay slip data;
  - details of cumulative pay for tax and pension purposes;
  - details of cumulative tax paid;
  - tax code;
  - details of any voluntary deductions from pay; and
  - bank/building society account details for payroll purposes.

TRANSFER OF STAFF ON TERMINATION OR EXPIRY
- The Scottish Ministers and CFL will proceed on the basis that the commencement of the provision of all or any part of the Services by an Incoming Operator under a New Contract will be a “Service Transfer”. The Scottish Ministers and CFL further agree that, as a result of the operation of Employment Regulations, a Service Transfer will be a Relevant Transfer and the contracts of employment between CFL (and/or any Associated Company) and the Transferring Employees (except in relation to any contract terms relating to occupational pension schemes) will have effect from the Service Transfer Date as if originally made between the Incoming Operator and each such Transferring Employee.
- CFL shall procure that any subcontractor, whether engaged by CFL or an Associated Company, shall perform and discharge all its obligations in respect of all the Transferring Employees up to the Service Transfer Date and any necessary apportionments in respect of any periodic payments due to them will be made. CFL shall indemnify the Scottish Ministers for itself and on behalf of any Incoming Operator against all Employee Liabilities arising from CFL's, any Associated Company’s or any subcontractor’s failure to perform and discharge any such obligation.
- CFL (on behalf of itself and any Associated Company) shall indemnify the Scottish Ministers, for themselves and on behalf of any Incoming Operator, against any Employee Liabilities in respect of the Transferring Employees arising from or as a result of:
  - any act or omission by CFL, any Associated Company or any subcontractor occurring before the Service Transfer Date;
  - any claim made by or in respect of any person employed or formerly employed by CFL, any Associated Company or any subcontractor other than a Transferring Employee for which it is alleged that the Scottish Ministers or any Incoming Operator may be liable by virtue of this Agreement and/or Employment Regulations;
  - any claim made by or in respect of a Transferring Employee or any appropriate employee representative (as defined in Employment Regulations) of any Transferring Employee relating to any act or omission of CFL, any Associated Company or any subcontractor in relation to its or their obligations under Employment Regulations whether occurring before, on or after the Service Transfer Date including any claim relating to its or their obligations under Regulation 13 of the Employment Regulations or in respect of an award of compensation under Regulation 15 the Employment Regulations except to the extent that the liability arises from the Scottish Ministers' or any Incoming Operator's failure to comply with Regulation 13(4) of the Employment Regulations;
  - any statement communicated to or action undertaken by CFL and/or any Associated Company to, or in respect of, any Transferring Employee on or before the Service Transfer Date regarding the Service Transfer which has not been agreed in advance with the Scottish Ministers in writing;
  - in relation to any proposed change by CFL and/or any Associated Company in the working conditions or terms of employment of any Transferring Employees to take effect on or after the Service Transfer Date (including any claim for constructive dismissal), whether such change is proposed before, on or after the Service Transfer Date;
  - a failure of CFL and/or any Associated Company to discharge or procure the discharge of all wages, salaries and all other benefits and all PAYE tax deductions and National Insurance contributions relating to the Transferring Employees in respect of the period on or before the Service Transfer Date;
  - in respect of any fact or matter concerning or arising from the Transferring Employees employment, or the termination thereof, before the Service Transfer Date including any claim for a redundancy payment;
  - in relation to the breach or non-observance by CFL and/or any Associated Company during the period prior to the Service Transfer Date of any collective agreement or other custom or practice with a trade union or staff association in respect of any Transferring Employees; and
  - any proceeding, claim or demand by the HMRC or other statutory authority in respect of any financial obligation including, but not limited to, PAYE and primary and secondary National Insurance contributions:
    - in relation to any Transferring Employees, to the extent that the proceeding, claim or demand by the HMRC or other statutory authority relates to financial obligations arising before the Service Transfer Date; and
    - in relation to any employee who is not a Transferring Employee, and in respect of whom it is later alleged or determined that Employment Regulations applied so as to transfer his/her employment from CFL (or any Associated Company) to the Scottish Ministers or the Incoming Operator, to the extent that the proceeding, claim or demand by the HMRC or other statutory authority relates to financial obligations arising before the Service Transfer Date.
  - The Scottish Ministers shall procure that the Incoming Operator shall indemnify CFL and/or any Associated Company against all Employee Liabilities arising from the Incoming Operator's failure to perform and discharge any obligation and against any Employee Liabilities in respect of the Transferring Employees arising from or as a result of any act or omission by the Scottish Ministers or an Incoming Operator (as appropriate) relating to a Transferring Employee occurring before, on or after the Service Transfer Date and/or any other matter, event or circumstance occurring or having its origin on or after the Service Transfer Date which would give rise to a substantial change in working conditions of a Transferring Employee to the material detriment of a Transferring Employee.
  - The Scottish Ministers shall procure that the Incoming Operator shall indemnify CFL and/or any Associated Company against any claim made by or in respect of a Transferring Employee or any appropriate employee representative (as defined in the Employment Regulations) of any Transferring Employee relating to any act or omission of the Incoming Operator in relation to its obligations under the Employment Regulations whether occurring before, on or after the Service Transfer Date including any claim relating to its obligations under Regulation 13(4) of Employment Regulations except to the extent that the liability arises from any CFL failure to comply with its obligations under Employment Regulations.
  - In the event of a Service Transfer to which Employment Regulations do not apply the following provisions shall apply:
    - the Scottish Ministers can, and shall advise the Incoming Operator that it can, in its discretion make a written offer to any of the employees identified on the Provisional Staff List to employ that employee under a new contract of employment, to take effect on the day after the cessation by CFL of the provision of the Services (or the relevant part of the Services) in which such employee was employed;
    - when the offer has been made by the Scottish Ministers or Incoming Operator and accepted by any employee or worker, CFL (and/or the relevant Associated Company) shall permit the employee or worker to leave its employment, as soon as practicable depending on the business needs of CFL and which could be without the employee or worker having worked his full notice period, if the employee so requests;
    - if the employee does not accept an offer of employment made by the Scottish Ministers or Incoming Operator, or no such offer is made, the employee shall remain employed by CFL and or the relevant Associated Company and all Employee Liabilities in relation to the employee shall remain with CFL and/or the Associated Company and CFL shall indemnify the Scottish Ministers for themselves and on behalf of any Incoming Operator against any Employment Liabilities that either of them may incur in respect of any such employees of CFL and/or any Associated Company.

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