Schedule 3: Transfer Schemes
855.This Schedule makes detailed provision in relation to transfer schemes made under section 39.
Paragraph 1: Introductory
856.This paragraph defines a “transferor” and “transferee”. The “transferor” is likely to be a Government Department and the “transferee” the MMO.
Paragraph 2: The property, rights and liabilities that may be transferred
857.By this paragraph, a transfer scheme may make provision for the transfer of property, rights or liabilities, even where that property, or those rights or liabilities, would not otherwise be capable of transfer.
Paragraph 3: Creation and apportionment of property, rights or liabilities
858.This paragraph enables the creation of interests in or rights over transferred property for the benefit of transferor or the transferee or others. It also allows the creation of rights and liabilities between the transferor and transferee.
Paragraph 4: Vesting certificates
859.This paragraph confirms that a certificate issued by the Secretary of State that states that something is vested in any person under a transfer scheme is to be taken as conclusive evidence of that fact. This certificate is evidence that a transfer has taken place.
Paragraph 5: Employment contracts
860.This paragraph makes provision in relation to rights and liabilities under a contract of employment transferred by means of a transfer scheme. It provides that a contract of employment does not end when there is a transfer of employment under a transfer scheme. The contract of employment will continue as if it had been made between the employee and the MMO (the transferee). This provision is equivalent to regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (“TUPE”) and conforms with the Cabinet Office statement of practice of January 2000 “Staff Transfers in the Public Sector”. This states that public sector bodies should ensure that the principles of TUPE are followed and that transferring public sector staff are offered terms that are, overall, no less favourable than those set out in TUPE.
Paragraph 6: Employee expressing objection to transfer of contract of employment
861.This paragraph sets out what happens if an employee objects to the transfer of their employment contract under a scheme. The contract of employment will cease at the point the transfer would have taken place but the employee is not to be considered to have been dismissed.
Paragraph 7: Right to terminate contract of employment for substantial detrimental change in conditions
862.This paragraph preserves an individual’s right to terminate their contract of employment where there is a substantial detrimental change in working conditions. A detrimental change is something other than a change in employer.
Paragraph 8: Civil servants
863.This paragraph makes provision for the employment of persons employed in the civil service at the point of transfer under a transfer scheme. The terms of their employment in the civil service will form the terms of a contract of employment with the transferee.
Paragraph 9: Compensation
864.This paragraph allows the Secretary of State to include in a transfer scheme provision for the payment of compensation to any person adversely affected by that scheme.
Paragraph 10: Validity
865.This paragraph ensures anything done by the transferor before the time of transfer is still valid after transfer. An example of this might be where the transferor has signed the lease on a building. This paragraph ensures the lease remains valid after transfer to the MMO.
Paragraph 11: Continuity
866.This paragraph ensures anything done by the transferor in relation to something being transferred is treated as though it had been done by the MMO (the transferee). The MMO may also continue anything started by the transferor before transfer. For example, if an enforcement action were being taken against someone by the transferor, this paragraph may enable this action to be continued by the MMO. Similarly, where an employee had brought an action against their employer (the transferor), their case would continue against the MMO after the transfer.
Paragraph 12: Documents
867.This paragraph ensures that any reference to the transferor in any document relating to anything transferred under a scheme is to be read as a reference to the MMO. This saves having to change the wording in documents such as leases.
Paragraph 13: Remedies
868.This paragraph means that the rights, powers and remedies which were available to the transferor are available to the MMO – in relation to any right or liability that it assumes on transfer – in exactly the same way as they could have been relied upon by the transferring organisation.
Paragraph 14: Interim arrangements
869.This paragraph allows a transfer scheme to include interim arrangements whereby the transferor makes available to the MMO premises, facilities and staff for the period between the making of the scheme and the date of transfer.
Paragraph 15: Retrospective modification of schemes
870.This paragraph allows the Secretary of State to modify a transfer scheme and for any changes to take effect from a nominated date. The power might be used to remedy any mistake made in a transfer scheme and the ability to nominate a date would avoid any adverse affects on matters such as continuity of service.
Paragraph 16: Incidental, consequential, supplemental, or transitional provision or savings
871.This paragraph allows for transfer schemes to include additional provisions designed to ensure a smooth and efficient transition to the new arrangements.
