The National Health Service Pension Scheme (Amendment) Regulations 2009

The National Health Service Pension Scheme Regulations 1995^f1 shall be amended as follows.

In paragraph (1) of regulation B1 (membership of the scheme) after “(restrictions on membership)”, insert “and B3 (restriction on further participation in the scheme)”.

In regulation B3 (restriction on further participation in the scheme) after paragraph (3), insert—

“(4)

Subject to paragraph (7), a person who satisfies Condition A or Condition B may not contribute to or accrue pensionable service under the scheme in respect of any period of NHS employment on or after 1st July 2009 (“the relevant employment”) with effect from the later of—

(a)

that date, and

(b)

the date on which Condition A or Condition B is met.

(5)

Condition A is that on or after 13th January 2009—

(a)

that person is employed by an employing authority,

(b)

the relevant employment commences in accordance with an arrangement under which it is the intention of the employing authority to retain that person as an employee following that person’s objection to that person’s transfer to another body (which is not an employing authority) (“a retention arrangement”), and

(c)

but for that retention arrangement—

(i)

the transfer of that person’s employment would be a relevant transfer for the purposes of the TUPE Regulations^f2, or

(ii)

that person’s employment would, in the Secretary of State’s opinion, transfer from the employing authority to another employer in the public sector by virtue of an arrangement broadly equivalent to a TUPE transfer.

(6)

Condition B is that on or after 13th January 2009—

(a)

that person—

(i)

is seconded from an employing authority to another body (which is not an employing authority), but

(ii)

remains an employee of that employing authority during that secondment, and

(b)

the purpose of that secondment is, in the opinion of the Secretary of State, for that person to assist that other body in the discharge of any functions which have previously transferred to that other body from that employing authority.

(7)

A person referred to in paragraph (4) may contribute to or accrue pensionable service under the scheme in respect of the relevant employment referred to in that paragraph if the Secretary of State considers it appropriate, having regard to the nature of that employment and the circumstances under which it takes place, to accept that person as a member of the scheme.

(8)

The reference in paragraph (5)(c)(ii) to an arrangement broadly equivalent to a TUPE transfer is to an arrangement—

(a)

which, having regard to the purpose of the arrangement and its effect on the functions of the employing authority, the Secretary of State considers has that equivalence, and

(b)

under which the Secretary of State requires the parties to agree that the rights of the person whose employment is being transferred should, as far as practicable, be treated no less favourably than they would have been under a TUPE transfer.

(9)

In this regulation—

• “the TUPE Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006^f3;

• “a TUPE transfer” means a transfer of an undertaking to which the TUPE Regulations apply.”.

The National Health Service Pension Scheme Regulations 2008^f1 shall be amended as follows.

In regulation 2.B.2 (restrictions on eligibility: general) after paragraph (8), insert—

“(9)

A person who satisfies Condition A or Condition B is not eligible to be an active member of the Scheme in respect of any period of NHS employment on or after 1st July 2009 (“the relevant employment”) with effect from the later of—

(a)

that date, and

(b)

the date on which Condition A or Condition B is met.

(10)

Condition A is that on or after 13th January 2009—

(a)

that person is employed by an employing authority,

(b)

the relevant employment commences in accordance with an arrangement under which it is the intention of the employing authority to retain that person as an employee following that person’s objection to that person’s transfer to another body (which is not an employing authority) (“a retention arrangement”), and

(c)

but for that retention arrangement—

(i)

the transfer of that person’s employment would be a relevant transfer for the purposes of the TUPE Regulations, or

(ii)

that person’s employment would, in the Secretary of State’s opinion, transfer from the employing authority to another employer in the public sector by virtue of an arrangement broadly equivalent to a TUPE transfer.

(11)

Condition B is that on or after 13th January 2009—

(a)

that person—

(i)

is seconded from an employing authority to another body (which is not an employing authority), but

(ii)

remains an employee of that employing authority during that secondment, and

(b)

the purpose of that secondment is, in the opinion of the Secretary of State, for that person to assist that other body in the discharge of any functions which have previously transferred to that other body from that employing authority.

(12)

A person referred to in paragraph (9) may be an active member of the Scheme in respect of the relevant employment referred to in that paragraph if the Secretary of State considers it appropriate, having regard to the nature of that employment and the circumstances under which it takes place, to accept that person as such a member.

(13)

The reference in paragraph (10)(c)(ii) to an arrangement broadly equivalent to a TUPE transfer is to an arrangement—

(a)

which, having regard to the purpose of the arrangement and its effect on the functions of the employing authority, the Secretary of State considers has that equivalence, and

(b)

under which the Secretary of State requires the parties to agree that the rights of the person whose employment is being transferred should, as far as practicable, be treated no less favourably than they would have been under a TUPE transfer.

(14)

In this regulation—

• “the TUPE Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006;

• “a TUPE transfer” means a transfer of an undertaking to which the TUPE Regulations apply.”.