SCHEDULES

SCHEDULE 2TRANSFER SCHEMES

Section 1.

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.