Pensions Bill

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Pensions Bill

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 2 — Compliance
19

43
Information for private pensions policy and retirement planning
(1)
In Schedule 10 to the Pensions Act 2004 (c. 35) (use and supply of information
for purposes relating to private pensions policy and retirement planning) after
paragraph 3 insert—
“4    (1)
This paragraph applies to information which is held—
5
(a)
by the Pensions Regulator;
(b)
by a person providing services to the Pensions Regulator, in
connection with the provision of those services.
      (2)
Information to which this paragraph applies may be supplied—
(a)
to the Secretary of State or the Northern Ireland Department,
10
or
(b)
to a person providing services to the Secretary of State or the
Northern Ireland Department,

for use for the purposes of functions relating to private pensions
policy or retirement planning.
15
      (3)
In this paragraph—
“private pensions policy” means policy relating to schemes
which are occupational pension schemes or personal pension
schemes within the meaning of Part 1 of the Pensions Act
2008;
20
“retirement planning” means promoting financial planning for
retirement.”
(2)
Section 3 of the Social Security Act 1998 (c. 14) (use of information) is amended
as follows.
(3)
In subsection (5), in the definition of “private pensions policy”—
25
(a)
the words from “occupational” to the end become paragraph (a), and
(b)
after that paragraph insert, “or
(b)
occupational pension schemes or private
pension schemes within the meaning of Part 1 of
the Pensions Act 2008, if they do not fall within
30
paragraph (a);”.
44
Penalty for disclosure
(1)
In section 82(5)(a) of the Pensions Act 2004 (penalty for disclosure of restricted
information, on summary conviction) at the end insert “, or imprisonment for
a term not exceeding 12 months, or both”.
35
(2)
After subsection (5) insert—
“(6)
In relation to an offence under subsection (5) committed before the
commencement of section 282 of the Criminal Justice Act 2003 (c 44)
(short sentences) the reference in subsection (5)(a) to 12 months has
effect as if it were a reference to six months.
40
(7)
Subsection (6) does not extend to Scotland.”

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 3 — Protection of employment rights
20

Objectives of the Regulator
45
Objectives of the Regulator
In section 5(1) of the Pensions Act 2004 (c. 35), before “and” at the end of
paragraph (c) insert—
“(ca)
to maximise compliance with the duties under Chapter 1 of Part
5
1 of the Pensions Act 2008,”.
Chapter 3
Protection of employment rights
46
The right not to suffer detriment
(1)
A worker has the right not to be subjected to any detriment by an act, or a
10
deliberate failure to act, by the worker’s employer, done on the ground that—
(a)
any action was taken, or was proposed to be taken, with a view to
enforcing in favour of the worker a requirement to which this section
applies;
(b)
the employer was prosecuted for an offence under section 37 as a result
15
of action taken for the purpose of enforcing in favour of the worker a
requirement to which this section applies; or
(c)
any provision of Chapter 1 of this Part applies to the worker, or will or
might apply.
(2)
It is immaterial for the purposes of paragraph (a) or (b) of subsection (1)—
20
(a)
whether or not the requirement applies in favour of the worker, or
(b)
whether or not the requirement has been contravened,

but, for that subsection to apply, the claim that the requirement applies and, if
applicable, the claim that it has been contravened must be made in good faith.
(3)
This section applies to any requirement imposed on the employer by or under
25
any provision of Chapter 1 of this Part.
(4)
This section does not apply where the detriment in question amounts to
dismissal within the meaning of Part 10 of the Employment Rights Act 1996
(c. 18) (unfair dismissal).
(5)
In this section references to enforcing a requirement include references to
30
securing its benefit in any way.
47
Enforcement of the right
(1)
A worker may present a complaint to an employment tribunal that the worker
has been subjected to a detriment in contravention of section 46.
(2)
Subject to the following provisions of this section, the provisions of sections
35
48(2) to (4) and 49 of the Employment Rights Act 1996 (complaints to
employment tribunals and remedies), apply in relation to a complaint under
this section as they apply in relation to a complaint under section 48 of that Act,
but taking references in those provisions to the employer as references to the
employer within the meaning of section 46(1).
40
(3)
Where—

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 3 — Protection of employment rights
21

(a)
the detriment to which the worker is subjected is the termination of the
worker's contract, but
(b)
that contract is a worker’s contract and not a contract of employment,

any compensation awarded under section 49 of the Employment Rights Act
1996 (c. 18) by virtue of subsection (2) must not exceed the limit specified in
5
subsection (4).
(4)
The limit is the total of—
(a)
the sum which would be the basic award for unfair dismissal,
calculated in accordance with section 119 of the Employment Rights
Act 1996, if the worker had been an employee and the contract
10
terminated had been a contract of employment; and
(b)
the sum for the time being specified in section 124(1) of that Act which
is the limit for a compensatory award to a person calculated in
accordance with section 123 of that Act.
(5)
Where the worker has been working under arrangements which do not fall to
15
be regarded as a worker’s contract for the purposes of the Employment Rights
Act 1996, the worker is to be treated for the purposes of subsections (3) and (4)
as if any arrangements under which the worker has been working constituted
a worker’s contract falling within section 230(3)(b) of that Act.
(6)
In section 18(1) of the Employment Tribunals Act 1996 (proceedings where
20
conciliation is available), after paragraph (s) insert, “, or
(t)
under section 47 of the Pensions Act 2008.”
48
Right of employee not to be unfairly dismissed
(1)
The Employment Rights Act 1996 is amended as follows.
(2)
After section 104C (flexible working) insert—
25
“104D
Pension enrolment rights
(1)
An employee who is dismissed shall be regarded for the purposes of
this Part as unfairly dismissed if the reason (or, if more than one, the
principal reason) for the dismissal is that—
(a)
any action was taken, or was proposed to be taken, with a view
30
to enforcing in favour of the employee a requirement to which
this section applies;
(b)
the employer was prosecuted for an offence under section 37 of
the Pensions Act 2008 as a result of action taken for the purpose
of enforcing in favour of the employee a requirement to which
35
this section applies; or
(c)
any provision of Chapter 1 of that Part of that Act applies to the
employee, or will or might apply.
(2)
It is immaterial for the purposes of paragraph (a) or (b) of subsection (1)
above—
40
(a)
whether or not the requirement applies in favour of the
employee, or
(b)
whether or not the requirement has been contravened,

but, for that subsection to apply, the claim that the requirement applies
and, if applicable, the claim that it has been contravened must be made
45
in good faith.

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 3 — Protection of employment rights
22

(3)
This section applies to any right conferred by, or by virtue of, any
provision of Chapter 1 of Part 1 of the Pensions Act 2008.”
(3)
In section 105 (redundancy as unfair dismissal), in subsection (1)(c) (which
refers to any of subsections (2A) to (7J) of that section applying) for “(7J)”
substitute “(7K)”.
5
(4)
After subsection (7J) of that section insert—
“(7K)
This subsection applies if the reason (or, if more than one, the principal
reason) for which the employee was selected for dismissal was one of
those specified in subsection (1) of section 104D (read with subsection
(2) of that section).”
10
(5)
In section 108 (exclusion of right: qualifying period of employment) in
subsection (3) (cases where no qualifying period is required) after paragraph
(gi) insert—
“(gj)
subsection (1) of section 104D (read with subsection (2) of that
section) applies,”.
15
(6)
In section 237(1A) of the Trade Union and Labour Relations (Consolidation)
Act 1992 (cases where employee may complain of unfair dismissal despite
participation in unofficial industrial action), in paragraph (a)—
(a)
for “, 103A or 104C” substitute “, 103A, 104C or 104D”;
(b)
for “protected disclosure and flexible working” substitute “protected
20
employment, flexible working and pension scheme membership”.
(7)
In section 238(2A)(a) of that Act (cases where employment tribunal to
determine whether dismissal of an employee is unfair despite limitation in
subsection (2) of that section)—
(a)
for “, 103 or 104C” substitute “, 103, 104C or 104D”;
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(b)
for “, employee representative and flexible working” substitute “,
employee representative, flexible working and pension scheme
membership”.
49
Restrictions on agreements to limit operation of this Part
(1)
Any provision in any agreement (whether a worker's contract or not) is void in
30
so far as it purports—
(a)
to exclude or limit the operation of any provision of this Part; or
(b)
to preclude a person from bringing proceedings under section 47 before
an employment tribunal.
(2)
Subsection (1) above does not apply to any agreement to refrain from
35
instituting or continuing proceedings where a conciliation officer has taken
action under section 18 of the Employment Tribunals Act 1996 (conciliation).
(3)
Subsection (1) above does not apply to any agreement to refrain from
instituting or continuing before an employment tribunal any proceedings
within section 18(1)(t) of the Employment Tribunals Act 1996 (proceedings
40
under this Act where conciliation is available) if the conditions regulating
compromise agreements under this Act are satisfied in relation to the
agreement.
(4)
For the purposes of subsection (3) above the conditions regulating compromise
agreements under this Act are that—
45
(a)
the agreement must be in writing,

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 3 — Protection of employment rights
23

(b)
the agreement must relate to the particular proceedings,
(c)
the worker must have received advice from a relevant independent
adviser as to the terms and effect of the proposed agreement and, in
particular, its effect on his ability to pursue his rights before an
employment tribunal,
5
(d)
there must be in force, when the adviser gives the advice, a contract of
insurance, or an indemnity provided for members of a profession or a
professional body, covering the risk of a claim by the worker in respect
of loss arising in consequence of the advice,
(e)
the agreement must identify the adviser, and
10
(f)
the agreement must state that the conditions regulating compromise
agreements under this Act are satisfied.
(5)
A person is a relevant independent adviser for the purposes of subsection (4)(c)
above if that person—
(a)
is a qualified lawyer,
15
(b)
is an officer, official, employee or member of an independent trade
union who has been certified in writing by the trade union as
competent to give advice and as authorised to do so on behalf of the
trade union,
(c)
works at an advice centre (whether as an employee or a volunteer) and
20
has been certified in writing by the centre as competent to give advice
and as authorised to do so on behalf of the centre, or
(d)
is a person of a description specified in an order made by the Secretary
of State.
(6)
But a person is not a relevant independent adviser for the purposes of
25
subsection (4)(c) above in relation to the worker—
(a)
if the person is employed by, or is acting in the matter for, the employer
or an associated employer,
(b)
in the case of a person within subsection (5)(b) or (c) above, if the trade
union or advice centre is the employer or an associated employer,
30
(c)
in the case of a person within subsection (5)(c) above, if the worker
makes a payment for the advice received from the person, or
(d)
in the case of a person of a description specified in an order under
subsection (5)(d) above, if any condition specified in the order in
relation to the giving of advice by persons of that description is not
35
satisfied.
(7)
In this section “qualified lawyer” means—
(a)
as respects England and Wales—
(i)
a barrister (whether in practice as such or employed to give
legal advice);
40
(ii)
a solicitor who holds a practising certificate; or
(iii)
a person other than a barrister or solicitor who is an authorised
advocate or authorised litigator (within the meaning of the
Courts and Legal Services Act 1990);
(b)
as respects Scotland—
45
(i)
an advocate (whether in practice as such or employed to give
legal advice); or
(ii)
a solicitor who holds a practising certificate.
(8)
For the purposes of this section any two employers are associated if—

Pensions Bill
Part 1 — Pension scheme membership for jobholders
Chapter 4 — Power to establish a pension scheme
24

(a)
one is a company of which the other (directly or indirectly) has control;
or
(b)
both are companies of which a third person (directly or indirectly) has
control;

and “associated employer” is to be read accordingly.
5
Chapter 4
Power to establish a pension scheme
Pension scheme
50
Power to provide for a pension scheme
(1)
The Secretary of State may establish a pension scheme and make provision for its
10
administration and management.
(2)
A scheme established under this section is to be treated for all purposes as
established under an irrevocable trust.
(3)
It must be a scheme that is able to be registered under Chapter 2 of Part 4 of the
Finance Act 2004 (c. 12).
15
(4)
It must when registered under that Chapter be a scheme such that a jobholder’s
employer, if a participating employer, may comply with an enrolment duty by
arranging for the jobholder to become an active member of the scheme.
(5)
It must be a scheme that complies with any provision of Northern Ireland
legislation corresponding to subsection (4).
20
(6)
The scheme administrator must ensure that the scheme is and remains
registered under Chapter 2 of Part 4 of the Finance Act 2004.
(7)
“Scheme administrator” has the same meaning here as in that Part.
(8)
The powers conferred by subsection (1) are exercisable by order.
(9)
If an order establishes a scheme, any further provision that may be made by
25
order in relation to the scheme may also be made by rules (and rules may be
made so as to come into force at the same time as the establishing order).
(10)
That is subject to subsections (11) and (12).
(11)
Rules are subject to any provision made by order.
(12)
No provision may be made by rules about—
30
(a)
the purpose or object of the scheme;
(b)
the appointment or removal of trustees;
(c)
(as regards trustees, or members of any corporate trustee) meetings,
committees or delegation of functions;
(d)
any exclusion of liability on the part of trustees, or the provision of any
35
indemnity or insurance out of the funds of the scheme.
(13)
Except as expressly provided, nothing in this Act limits the generality of the
powers conferred by this section.