TUPE transfers give rise to very complex pension issues, as illustrated in the case of Proctor & Gamble Company v Svenska Cellulosa Aktiebolaget SCA & Other [2012] EWHC 1257 (Ch), which we reported on in August. The response to the BIS Call for Evidence: Effectiveness of Transfer of Undertakings (Protection of Employment) Regulations 2006 was published on 14 September. The consultation raised various questions about how TUPE applies to pension rights and, unsurprisingly, not all of the questions were answered. Of particular relevance to the wider pensions industry are the uncertainties over how TUPE interacts with auto-enrolment.
Whilst the Pensions Regulator did issue guidance notes on how employers should deal with autoenrolment on TUPE transfers, unresolved questions remain over employer contributions and employee opt-outs. Concerns have also been raised in relation to how public to private sector transfers will be handled under Fair Deal, and the ambiguity surrounding how occupational pension schemes are protected under TUPE. Given the complexity of this area, we do not believe that BIS will issue any guidance in this area. Therefore, these uncertainties will remain.
Click here for the BIS response.
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