Commentary on Sections Part 3: Care Trusts and Partnership Arrangements Section 48: Transfer of staff in connection with partnership arrangements
237.Section 48 inserts into the Health Act 1999 a new Schedule 2A, set out as schedule 4 to this Act. The new Schedule makes provision for the transfer of staff where any functions of a body are to be exercised by another body under section 31 of the Health Act (including where Care Trusts are established under section 45 of this Act). The Schedule enables staff transfer orders to be made which make the same provision as the Transfer of Undertakings Regulations 1981 (S.I. 1981/1794) (“the TUPE Regulations”). This is necessary because there is some doubt as whether the TUPE Regulations apply to transfers of functions in the public sector. Currently the TUPE Regulations exclude pensions, although the Acquired Rights Directive (which the TUPE Regulations implement) has just been amended to enable Member States to include pension provision. Orders under the new Schedule include the transfer of pension provision except in so far as the Order makes provision under paragraph 4 of the Schedule. This is so that the flexibility for Member States to make provision about pensions where the Acquired Rights Directive applies is also available in the case of staff transfers arising from partnership arrangements under section 31 of the 1999Act.