The National Health Service Pension Scheme Regulations 2015

Regulation 19

SCHEDULE 7 Restrictions on eligibility: Former members and TUPE transfers

Introduction

1.  A person (P) who satisfies condition A or condition B is not eligible to be an active member of this scheme in respect of any period of NHS employment on or after 1st April 2015 (the relevant employment) with effect from the later of—

(a) that date; and

(b) the date on which condition A or B (as the case may be) is met.

Condition A

2.  Condition A is that—

(a) P is employed by an employing authority;

(b) the relevant employment commences in accordance with an arrangement under which it is the intention of the employing authority to retain P as an employee following P’s objection to P’s transfer to another body (which is not an employing authority) (“a retention arrangement”); and

(c) but for the retention arrangement—

(i) the transfer of P’s employment would be a relevant transfer for the purposes of the TUPE Regulations; or

(ii) P’s employment would, in the Secretary of State’s opinion, transfer from the employing authority to another employer in the public sector by virtue of an arrangement broadly equivalent to a TUPE transfer.

Condition B

3.  Condition B is that—

(a) P is seconded from an employing authority to another body (which is not an employing authority), but remains an employee of the employing authority during the secondment; and

(b) the purpose of the secondment is, in the opinion of the Secretary of State, for P to assist that other body in the discharge of any functions which have previously transferred to that other body from the employing authority.

Exception

4.  P may be an active member of this scheme in respect of the relevant employment if the Secretary of State considers it appropriate, having regard to the nature of the employment and the circumstances under which it takes place, to accept P as such a member.

Broadly equivalent to TUPE transfer

5.  The reference in paragraph 2(c)(ii) to an arrangement broadly equivalent to a TUPE transfer is to an arrangement—

(a) which, having regard to the purpose of the arrangement and its effect on the functions of the employing authority, the Secretary of State considers has that equivalence; and

(b) under which the Secretary of State requires the parties to agree that the rights of the person whose employment is being transferred should, as far as practicable, be treated no less favourably than they would have been under a TUPE transfer.

TUPE expressions

6.  In this Schedule—

“the TUPE Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006(1);

“a TUPE transfer” means a transfer of an undertaking to which the TUPE Regulations apply.

(1)

S.I. 2006/246 as amended by S.I. 2009/592, 2010/93 and 2014/16, 386 and 853.