SCHEDULES
SCHEDULE 2TRANSFER SCHEMES
Creation and apportionment of property, rights and liabilities etc.
1
A scheme may—
a
create for the transferor interests in or rights over property transferred by virtue of the scheme;
b
create for the Authority interests in or rights over property retained by the transferor;
c
create rights or liabilities between the transferor and the Authority.
2
1
A scheme may provide for the transfer of property, rights or liabilities that would not otherwise be capable of being transferred or assigned.
2
In particular, it may provide for the transfer to take effect regardless of a contravention, liability or interference with an interest or right that would otherwise exist by reason of a provision having effect in relation to the terms on which the transferor is entitled to the property or right, or subject to the liability, in question.
3
It does not matter whether the provision referred to in sub-paragraph (2) has effect under a statutory provision or an agreement or in any other way.
3
A certificate by the Department that anything specified in the certificate has vested in the Authority by virtue of a scheme is conclusive evidence for all purposes of that fact.
Employment contract
4
1
This paragraph applies if rights and liabilities under a contract of employment are transferred by virtue of a scheme.
2
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246) apply to the transfer whether or not the transfer would, apart from this paragraph, be a relevant transfer for the purposes of those regulations.
3
The scheme shall—
a
identify the transferring employees (whether by name or otherwise);
b
include provision securing pension protection for such employees;
c
include provision for procedures designed to resolve any grievances of such employees arising in relation to matters dealt with by the scheme; and
d
include provision for the payment of compensation by the Department to any such employee who suffers loss or detriment in consequence of the scheme.
4
Before making the scheme the Department shall consult—
a
in the case of a scheme identifying the transferring employees by name, those employees; and
b
in the case of a scheme identifying the transferring employees in any other way, such persons as appear to the Department to be representative of the transferring employees.
5
For the purposes of sub-paragraphs (3) and (4)—
a
“transferring employee” means an employee of an education and library board whose contract of employment becomes, by virtue of sub-paragraph (2), a contract of employment with the Authority;
b
“pension protection” is secured for a transferring employee (“T”) if after the change in T’s employer T has, as an employee of the Authority, rights to acquire pension benefits and those rights are the same as or (taken as a whole) not less favourable than those which T had as an employee of the education and library board.
6
Procedures under sub-paragraph (3)(c) must involve consideration of grievances by a person other than—
a
a member, or member of staff, of an education and library board;
b
a member, or member of staff, of the Authority; or
c
a member of staff of the Department.
Continuity
5
A transfer by virtue of a scheme does not affect the validity of anything done by or in relation to the transferor before the transfer takes effect.
6
Anything which—
a
is done by the transferor for the purposes of or otherwise in connection with anything transferred by virtue of a scheme, and
b
is in effect immediately before the transfer date,
is to be treated as done by the Authority
7
There may be continued by or in relation to the Authority anything (including legal proceedings)—
a
which relates to anything transferred by virtue of a scheme, and
b
which is in the process of being done by or in relation to the transferor immediately before the transfer date.
8
1
This paragraph applies to any document—
a
which relates to anything transferred by virtue of a scheme, and
b
which is in effect immediately before the transfer date.
2
Any references in the document to the transferor are to be read as references to the Authority.
Incidental provision
9
A scheme may include supplementary, incidental, transitional and consequential provision.
Interpretation
10
In this Schedule “transferor”, in relation to anything transferred by virtue of a scheme, means the education and library board from which it is so transferred.