HelloKindred TUPE Terms

These terms apply in the event that HelloKindred becomes the employer of the Customer’s employees pursuant to a transfer under the Employment Regulations.

Unless otherwise stated, capitalised terms shall have the meaning set out in the Master Services Agreement between HelloKindred and the Customer.

1. TUPE on entry

   1. In these terms the following definitions apply:

      1. Effective Date: the date on which a Statement of Work commences.

      2. Employees: those employees whose contract of employment transfer to HelloKindred from the Customer as at the Effective Date, being those employees who are listed in the applicable Statement of Work.

      3. Employee Liability Information: in respect of each of the Employees:

         1. the identity and age of the Employee;

         2. those particulars of employment that an employer is obliged to give the Employee under section 1 of the Employment Rights Act 1996;

         3. information about any disciplinary action taken against the Employee and any grievances raised by the Employee, where a Code of Practice issued under Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 relating exclusively or primarily to the resolution of disputes or any other applicable code or statutory procedure applied, within the previous two years;

         4. information about any court or tribunal case, claim or action either brought by the Employee against the Customer within the previous two years or where the Customer has reasonable grounds to believe that such action may be brought against HelloKindred arising out of the Employee’s employment with the Customer; and

         5. information about any collective agreement which will have effect after the [Effective Date] in relation to the Employee pursuant to regulation 5(a) of the Employment Regulations.

      4. Employment Regulations: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).

   2. The Customer and HelloKindred believe that, pursuant to the Employment Regulations, at the Effective Date, HelloKindred will become the employer of the Employees.

   3. The Customer represents, warrants and undertakes to HelloKindred that:

      1. no persons are employed or engaged in the provision of the Services other than the Employees;

      2. none of the Employees has given or received notice terminating their employment or will be entitled to give notice as a result of the provisions of this Agreement;

      3. full particulars of the terms of employment of all the Employees (including all remuneration, incentives, bonuses, expenses and other payments and benefits whatsoever payable) will be disclosed;

      4. there is not in existence any contract of employment with directors or employees of the Customer (or any contract for services with any individual) relating to the Services which cannot be terminated by three months’ notice or less without giving rise to the making of a payment in lieu of notice or a claim for damages or compensation (other than a statutory redundancy payment or statutory compensation for unfair dismissal);

      5. in relation to each of the Employees (and so far as relevant to each of its former employees who were employed or engaged in the provision of the Services) the Customer has:

         1. complied with all obligations imposed on it by Articles of the Treaty on the Functioning of the European Union, European Commission Regulations and Directives and all statutes, regulations and codes of conduct relevant to the relations between it and its employees or it and any recognised trade union or appropriate representatives;

         2. maintained adequate and suitable records regarding the service of each of its employees;

         3. calculated and paid all holiday pay for periods of holiday taken under regulation 13 of the Working Time Regulations 1998 (SI 1998/1833) in accordance with the Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time;

         4. complied with all collective agreements and customs and practices for the time being dealing with such relations or the conditions of service of its employees; and

         5. complied with all relevant orders and awards made under any statute affecting their conditions of service;

      6. the Customer has not been involved in any industrial or trade disputes in the last 3 years and to the best of the Customer’s knowledge, information and belief there are no circumstances which may result in any industrial dispute involving any of the Employees and none of the provisions of this Agreement including the identity of HelloKindred is likely to lead to any industrial dispute;

      7. there is not outstanding any agreement or arrangement to which the Customer is party in relation to the Employees for profit sharing or for payment to any of the Employees of bonuses or for incentive payments or other similar matters;

      8. the Customer has not entered into any recognition agreement with a trade union in relation to the Employees nor has it done any act which may be construed as recognition;

      9. the Customer has complied with all recommendations made by the Advisory Conciliation and Arbitration Service in relation to the Employees and with all awards and declarations made by the Central Arbitration Committee in relation to the Employees;

      10. there is no agreement, arrangement, scheme or obligation (whether legal or moral) for the payment of any pensions, allowances, lump sums or other like benefits on redundancy, on retirement or on death or during periods of sickness or disablement for the benefit of any of the Employees or former employees employed or engaged in the provision of the Services or for the benefit of dependants of such persons;

      11. no amounts due to or in respect of any of the Employees (including PAYE and National Insurance and pension contributions) are in arrears or unpaid;

      12. no monies or benefits other than in respect of contractual emoluments are payable to any of the Employees and there is not at present a claim, occurrence or state or affairs which may hereafter give rise to a claim against the Customer arising out of the employment or termination of employment of any of the Employees for compensation for loss of office or employment or otherwise and whether under contract or any statute or regulations or otherwise;

      13. the Customer has provided the Employee Liability Information to HelloKindred regarding each of the Employees either in writing or by making it available to HelloKindred in a readily accessible form;

      14. the Employee Liability Information contains information as at a specified date not more than 14 days before the date on which the information was provided to HelloKindred;

      15. the Customer has notified HelloKindred in writing of any change in the Employee Liability Information since the date on which it was provided; and

      16. the Employee Liability Information was provided not less than 28 days before the Effective Date.

   4. The Customer shall indemnify HelloKindred in full for and against all claims, costs, expenses or liabilities whatsoever and howsoever arising incurred or suffered by HelloKindred including all legal expenses and other professional fees (together with any VAT thereon) in relation to:

      1. the termination by the Customer of the employment of any of the Employees;

      2. anything done or omitted to be done in respect of any of the Employees which is deemed to have been done by HelloKindred by virtue of the Employment Regulations; and

      3. any claim made at any time by any employee of the Customer other than the Employees who claim to have become an employee of or have rights against HelloKindred by virtue of the Employment Regulations (Claims);

      provided that such costs, claims, expenses and liabilities are not payable as a result of any act or omission of HelloKindred.

   5. HelloKindred shall procure that its employees, agents and successors in title shall promptly:

      1. take such action in connection with the Claims as the Customer shall from time to time reasonably request;

      2. provide free of charge all such assistance and information as the Customer may reasonably request relating to the Claims to enable the Claims to be pursued;

      3. subject to any restriction imposed by law, provide the Customer, its legal and other advisers with access to all documents, records or other information held by HelloKindred relating to the Claims;

      4. provide the Customer and/or its professional advisers and experts with access from time to time to such members of staff as may be necessary to assist the Customer with the preparation of its cases in relation to the Claims;

      5. permit and require such employees as the Customer and/or its professional advisers may reasonably request to meet with the Customer and/or its legal advisers in normal working hours to prepare witness statements for trial, attend meetings with Counsel or experts and/or to attend any court hearing or trial in connection with the Claims for so long and as frequently as the Customer and/or its legal or other professional advisers may reasonably require;

      6. provide such other assistance as the Customer may reasonably request in order to ensure the due and timely prosecution of the Claims;

      7. resist in connection with the Claims any request for documents, information, access to relevant premises or to employees of the business by any third party without first informing the Customer and obtaining its agreement to any approval of the request; and

      8. preserve and not waive legal professional privilege or any other privilege attaching to any of the documents or other information relating to the Claims in their possession without first obtaining the Customer’s consent to such waiver, such consent not to be unreasonably withheld.

   6. All salaries and other emoluments including holiday pay, taxation and National Insurance contributions and contributions to retirement benefit schemes relating to the Employees shall be borne by the Customer up to and including the Effective Date and by HelloKindred with effect from the Effective Date.

   7. HelloKindred shall indemnify the Customer in full for and against all claims, costs expenses or liabilities whatsoever and howsoever arising, incurred or suffered by the Customer including all legal expenses and other professional fees (together with any VAT thereon) in relation to:

      1. any failure by HelloKindred to comply with its obligations pursuant to the Employment Regulations; and

      2. anything done or omitted to be done by HelloKindred in respect of any of the Employees whether before or after the Effective Date.

   8. During the term of the relevant Statement of Work, HelloKindred shall provide to the Customer any information the Customer may reasonably require relating to any individual employed, assigned or engaged in providing the Services under that Statement of Work (subject to applicable data protection laws).