Schedule 3 – Transfer of Staff, Property Etc. to Qualifications Scotland
210.Schedule 3 provides for the transfer of staff, property and membership of the Scottish Qualifications Authority to Qualifications Scotland.
211.Paragraph 1 provides that the “transfer date” referred to in the schedule will be the date on which that paragraph comes into force.
Transfer of staff
212.Paragraph 2 sets out how the staff of the Scottish Qualifications Authority will be transferred to Qualifications Scotland.
213.Sub-paragraph (1) provides that any person who is a staff member of the Scottish Qualifications Authority immediately before the transfer date will be transferred into the employment of Qualifications Scotland on that date.
214.Sub-paragraph (2) provides that the transfer of Scottish Qualifications Authority employees to Qualifications Scotland does not terminate their contracts of employment and has effect as if their contracts of employment were originally made with Qualifications Scotland.
215.Sub-paragraph (3) provides that all the rights, powers, duties and liabilities of, and anything done by or in relation to, the Scottish Qualifications Authority in respect of a transferred person (and their contract of employment) transfer to Qualifications Scotland. For example, an Employment Tribunal claim actionable against the Scottish Qualifications Authority by an employee would transfer with the employee and become actionable against Qualifications Scotland (subject to the time limits and other rules for bringing such claims).
216.sub-paragraph (4), if an employee of the Scottish Qualifications Authority does not want to become an employee of Qualifications Scotland, their employment will not be transferred, and their contract will be terminated on the day before the transfer date. Sub-paragraph (5) provides that this termination will not be treated as a dismissal of that person.
217.Sub-paragraph (6) provides that a transferred person’s right to terminate their contract of employment, where there is a substantially detrimental change to the contract, is not affected by sub-paragraphs (1) to (3). However, sub-paragraph (7) clarifies that the change of a transferred person’s employer from the Scottish Qualifications Authority to Qualifications Scotland is not to be treated as such a substantially detrimental change.
Transfer of property
218.Paragraph 3 sets out how the property, rights, liabilities and obligations of the Scottish Qualifications Authority will be transferred to Qualifications Scotland.
219.Sub-paragraphs (1) and (2) provide that on the transfer date, all of the property, rights, liabilities and obligations which on that date belong to or subsist in the Scottish Qualifications Authority are to be transferred to, and vest in, Qualifications Scotland.
220.Sub-paragraph (3) ensures that the Act overrides any other provisions that may prevent, penalise or restrict the transfers under this paragraph.
Duty to secure vesting of foreign property
221.Paragraph 4 requires the Scottish Qualifications Authority and Qualifications Scotland to take all steps as are required to ensure that the transfer to and vesting in Qualifications Scotland of any foreign property, right, liability or obligation of the Scottish Qualifications Authority is effective under the relevant foreign law.
Appointment of initial members
222.Paragraph 5 sets out how members of the Scottish Qualifications Authority will be appointed as initial members of Qualifications Scotland.
223.Sub-paragraph (1) appoints the chairing member of the Scottish Qualifications Authority (defined in sub-paragraph (5)) immediately before the transfer date as the chairing member of Qualifications Scotland. The chairing member is taken to have been appointed under paragraph 2(1)(a) of schedule 1 of this Act.
224.Sub-paragraph (2) provides that the Scottish Ministers may, by regulations subject to the negative procedure, appoint ordinary members of the Scottish Qualifications Authority as members of Qualifications Scotland (to be known, alongside the chair, as “initial members”). The ordinary members appointed are to be taken as having been appointed under paragraph 2(1) of schedule 1 of this Act.
225.Sub-paragraphs (3) and (4) provide that the regulations under sub-paragraph (2) may provide that where an initial member is a person mentioned in paragraph 3(2)(b)(i) or (ii) of schedule 1 (i.e. they were a registered teacher or member of college teaching staff providing relevant teaching or training) when they were appointed as a Scottish Qualifications Authority member, the appointment of that initial member can satisfy Qualifications Scotland’s membership requirements under paragraph 3(2)(b)(i) or (ii). This can apply regardless of whether the initial member has ceased to be a registered teacher or member of college teaching staff providing relevant teaching or training prior to the transfer date, as sub-paragraph (3)(b) provides that they will be treated as if they had ceased to have such role after being appointed as a member of Qualifications Scotland. In such a scenario, paragraph 3(4) of schedule 1 will apply to that initial member’s appointment (see paragraph 160 of these Notes), and while the initial member will be treated as if they are continuing to satisfy paragraph 3(2)(b)(i) or (ii) for the duration of their appointment, the Scottish Ministers will be required to have regard to the desirability of appointing another member who satisfies the sub-paragraph (i.e. is a registered teacher or member of college teaching staff providing relevant teaching or training) as soon as is reasonably practicable.
226.Sub-paragraph (6) provides that, unless exceptions are agreed between the Scottish Ministers and an initial member, the terms of an initial member’s appointment with Qualifications Scotland will continue to be the same as those on which the member had been appointed as a member of the Scottish Qualifications Authority, so far as is consistent with the Act.
