The NHS Counter Fraud Authority (Establishment, Constitution, and Staff and Other Transfer Provisions) Order 2017

Transfer of officers from the BSA to the AuthorityE+W

8.—(1) This article applies to any person who—

(a)immediately before the transfer date is employed by the BSA within NHS Protect; and

(b)has been notified in writing by the BSA before the transfer date that they are to be transferred to the employment of the Authority on the transfer date.

(2) Any person to whom paragraph (1) applies is, on the transfer date, transferred to the employment of the Authority.

(3) The contract of employment of a person whose employment transfers to the Authority under paragraph (2)—

(a)is not terminated by the transfer; and

(b)has effect from the transfer date as if originally made between that person and the Authority.

(4) Without prejudice to paragraph (3)—

(a)all the rights, powers, duties and liabilities of the BSA under, or in connection with, the contract of employment of any person whose employment transfers under paragraph (2), are to transfer to the Authority on the transfer date;

(b)any act or omission before the transfer date of or in relation to the BSA, in respect of that person, or that person’s contract of employment, is deemed to have been an act or omission of or in relation to the Authority.

(5) Paragraphs (2) to (4) do not operate to transfer the contract of employment of a person to whom paragraph (1) applies, or any rights, powers, duties and liabilities under, or in connection with that contract, if, before the transfer date, that person informed the BSA that the person objects to becoming employed by the Authority.

(6) Where a person to whom paragraph (1) applies has objected to the transfer of that person’s contract of employment to the Authority as described in paragraph (5), this article operates so as to terminate that person’s contract of employment with the BSA on the transfer date.

(7) Subject to paragraph (8), a person whose contract of employment is terminated in accordance with paragraph (6) is not to be treated, for any purpose, as having been dismissed by the BSA.

(8) Where the transfer involves or would involve a substantial change in working conditions to the material detriment of a person whose employment is or would have transferred under paragraph (2), that person may treat the contract of employment as having been terminated, and that person is to be treated for any purpose as having been dismissed by the employer.

(9) No damages are to be payable by an employer as a result of a dismissal falling within paragraph (8) in respect of any failure by the employer to pay wages to a person in respect of a notice period which the person has failed to work.

(10) Paragraphs (2), (3) and (5) to (8) are without prejudice to any right of a person arising apart from this article to terminate that person’s contract of employment without notice in acceptance of a repudiatory breach of contract by the employer.

(11) Records of the BSA’s relating to the employment of officers within NHS Protect whose contracts of employment are to transfer to the Authority pursuant to this article are to transfer to the Authority on the transfer date.

(12) Where a person whose contract of employment is transferred by this article is dismissed by the Authority, that person is to be treated, for the purposes of Part 10 of the Employment Rights Act 1996(1) (unfair dismissal) as having been unfairly dismissed if the sole or principal reason for the dismissal is the transfer.

(13) This paragraph applies where the sole or principal reason for a person’s dismissal is an economic, technical or organisational reason entailing changes in the workforce of the Authority after the transfer.

(14) Where paragraph (13) applies, paragraph (12) does not apply and, without prejudice to section 98(4) of the Employment Rights Act 1996 (test of fair dismissal)(2), for the purposes of sections 98(1) (reason for dismissal) and 135 (the right to a redundancy payment) of that Act—

(a)the dismissal is to be regarded as having been for redundancy where section 98(2)(c) of that Act applies; or

(b)in any other case, the dismissal is to be regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position that the employee held.

(15) Paragraph (12) does not apply in relation to a dismissal of an employee if the application of section 94 of the Employment Rights Act 1996 (right not to be unfairly dismissed) to that dismissal is excluded by or under any provision of that Act, the Employment Tribunals Act 1996(3) or the Trade Union and Labour Relations (Consolidation) Act 1992(4).

(16) The following provisions apply only for purposes of giving effect to a transfer under paragraph (2), as read with paragraphs (3) and (4), and are subject to paragraphs (5) to (10) and (12) to (15)—

(a)anything (including legal proceedings) which, immediately before the transfer date, is in the process of being done by, or in relation to, the BSA in connection with the employment of persons whose employment transfers under paragraph (2) is deemed to have effect as if done by, or in relation to, the Authority, and may be continued by, or in relation to, the Authority;

(b)any instrument made by, or in relation to, the BSA in connection with the employment of persons whose employment transfers under paragraph (2) continues in force until it is varied or revoked by the Authority;

(c)any form supplied by NHS Protect in connection with the employment of persons whose employment transfers under paragraph (2) continues to be valid until it is varied or revoked by the Authority and as if any reference in that form to NHS Protect or the BSA (in respect of that employment) were a reference to the Authority;

(d)any reference to NHS Protect or the BSA in any contract, arrangement, agreement, instrument or other document in connection with the employment of persons whose employment transfers under paragraph (2) is to be treated as a reference to the Authority.