Commentary on Sections Section 4, and the Schedule – Staff transfers
11.Section 4 gives effect to the Schedule, which makes provision about the transfer of staff to and from a joint department, with a view to ensuring that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I.2006/246) (‘TUPE’) apply to transfers of staff under the Act, in so far as those Regulations would not apply in any event (paragraph 1). In particular, paragraphs 3 to 6 of the Schedule are concerned with ensuring that, where staff have been designated for the purpose by a House authority (defined in paragraph 2 to mean the House of Commons Commission or the Corporate Officer of the House of Lords) or by the Corporate Officers, the conditions for the application of TUPE (for instance, that the transfer of an undertaking has occurred) are treated as satisfied, in so far as any of them may not in fact be satisfied in the case of that staff member.
12.Paragraph 3 is concerned with the transfer of a person employed in a House department (defined in paragraph 2 as a department of either House) in connection with a function of the House department which is allocated instead to a joint department. It provides that the re-allocated function is to be treated as transferred from the House authority to the Corporate Officers, and that transfer is to be treated as the transfer of an undertaking. A person employed in connection with the function is to be treated as employed in the undertaking immediately before the transfer if he is designated by the House authority for the purposes of the change (defined in paragraph 2 to mean the change in allocation of the function).
13.Paragraph 4 is concerned with the case where a joint department is allocated a function which has not previously been exercisable by a House department. Where a person employed in a House department is designated by his House authority for the purposes of the allocation of the function, then, the function is to be treated as transferred from the House authority to the Corporate Officers, and that transfer is to be treated as the transfer of an undertaking. The designated person is to be treated as employed in the undertaking immediately before its transfer.
14.Paragraph 5 provides that, where a function exercised by a joint department is to be allocated instead to a House department, the re-allocated function is to be treated as transferred to the House authority from the Corporate Officers, and that transfer is to be treated as the transfer of an undertaking. A person who is employed in the joint department in connection with the function and who has been designated by the Corporate Officers for the purposes of the change in the allocation of the function is to be treated as employed in the undertaking immediately before the transfer (even though that person may not necessarily have been employed in connection with the exercise of the function in relation to that House).
15.Paragraph 6 is concerned with cases where a function ceases to be allocated to a joint department but is not allocated to a House department. In that event, the Corporate Officers may designate either or both of the House authorities and the function is then treated as transferred from the Corporate Officers to the House authority of whichever House is designated, or (where both House authorities are designated) it is treated as comprising a function which is transferred to each of them. That transfer is to be treated as the transfer of an undertaking, and a person who is employed in the joint department in connection with the function and has been designated by the Corporate Officers for the purpose of its transfer to the House authority concerned is to be treated as employed in the undertaking immediately before the transfer.